social networking & professional liability may 13, 2010 speakers: –gary basham, basham parker...
TRANSCRIPT
Social Networking &Professional Liability
• May 13, 2010• Speakers:
– Gary Basham, Basham Parker– Rebecca Pearson, AmWINS Insurance
Brokerage of California – Michelle Kley, Beazley
• Moderator: Randall J. Krause
Rebecca S. Pearson, Esq.Assistant VP in the Financial Risk Solutions Group of AmWINS Insurance Brokerage, San Francisco.
Focus is E&O, D&O, EPL and other professional and management liability insurance placements. Expertise in cyber liability, technology, privacy, architects and engineers, lawyers professional, real estate professionals and miscellaneous consultants.
Before engaging in insurance brokerage in 2006, Becky practiced law in San Francisco. Practice included insurance coverage litigation representing policyholders in coverage disputes.
Stanford University (B.A. Communications)University of San Francisco School of Law (J.D. 2000)
Michelle Kley, Esq.
Legal counsel to Beazley’s Technology, Media and Business Solutions team
Focus is technology E&O, network security, privacy and media coverage.
Prior to joining Beazley in 2009, she was an associate at Wilson Sonsini Goodrich & Rosati specializing in mergers and acquisitions.
UC Berkeley School of Law (Boalt Hall) (J.D. 2003)Sonoma State University (B.A. psychology)
Gary R. Basham, Esq.Founding partner, Basham Parker LLP, with exclusive employment law practice.
Focus is defending employers against claims for breach of contract, discrimination, retaliation, harassment, wrongful termination, unfair business practices, violation of wage and hour laws. Expertise in Age Discrimination and Employment Act, ADA, Title VII, Equal Pay Act, FMLA & CFRA, California’s FEHA, California Workplace Violence Safety Act, and workplace privacy laws.
Member of the Labor and Employment Section of the State Bar of California, Sacramento County Bar Association, Sacramento Human Resource Management Association, Central Valley Human Resource Management Association.
Mediator for the United States District Court for the Eastern District of California’s Voluntary Dispute Resolution Program.In addition to his law practice, Mr. Basham also is actively engaged in various community service activities. From December 2003 through May 2009, Mr. Basham was the Vice President of the Board of Directors for the Sacramento Union Gospel Mission, an organization dedicated to helping the homeless. Mr. Basham continues to volunteer his time to the Union Gospel Mission, as well as other organizations which feed the hungry and house the homeless.
University of Michigan Law School, cum laude (J.D. 1987) Michigan State University, with honors (B.A. 1984).
Social Media Defined
• Social media is conversation and interaction online using highly accessible and scalable publishing techniques. Social media transforms people from content consumers to content producers.
Social Media Users
• Social media now appealing to big and small businesses.
• Companies are utilizing social media to reach customers and to build or maintain reputation.
Social Media – A Business Tool
• Examples: Facebook, Twitter, LinkIn, Ning, YouTube
• Social media have become the new "tool" for effective business marketing and sales.
Small Social Media
• Ziggs—a professional connection portal. • Ecademy—networking for business, offline
networking events and global networking groups.
• Fast Pitch—Social Network for Business Networking Professionals to market their business, press, blogs, events and networks.
• Yelp—a local business review and talk networking site, including user reviews and recommendations.
Social Media Statistics• Social networking now accounts for 11 percent of all time
spent online in the US
• In December 2009, 248 million unique monthly users on the top eight social networking sites in the US, an increase of 41% from January 2009
• One in four (25%) US Internet page views occurred at
one of the top social networking sites in December 2009, up 83% from 13.8% in December 2008
Social Media Statistics• In December 2009, Twitter handled over 1 Billion tweets
per month. – Next month (January 2010), handled over 1.2 billion– Average 40 million tweets per day
• Mobile User Stats as of March 4, 2010: – Twitter had 347% jump since 2009 in access via mobile browser.– Over 30% of smartphone users access social networks using a
mobile browser, up from 22% a year ago. – Facebook uses w/mobile browser up 112%. – In one month (January 2010): Facebook had 25.1 million users;
MySpace had 11.4 million; Twitter had 4.7million
Last Week
• ePlace Solutions employees discovered major data breach
• Social networking site involved: Friendster.com
KNBCPublished: May 5, 2010
Over the past few months thousands of Facebook users report receiving messages or friend requests from people they don’t know.
Researchers at VeriSign, an internet security company say they’ve tracked a growing trend of bogus or stolen Facebook accounts that are now up for sale in high volume on the black market.
VeriSign says 1.5 million Facebook accounts appear to be for sale.Criminals apparently steal login data for accounts, typically with phishing techniques that trick users into disclosing their password. They use the accounts to send out spam or malicious programs or steal a person’s identity.
Here’s an example from
my email account!
SCREENING AND BACKGROUND CHECKS
CareerBuilder.com reports that a survey of 3100 employers revealed that 22% of hiring managers said they use the Internet and social networking sites to research job candidates
An additional 9% said they don't currently use the Internet and social networking sites to screen potential employees, but plan to start
SCREENING AND BACKGROUND CHECKS
Twenty-four percent of hiring managers who researched job candidates via the Internet and social networking sites said they found content that helped to solidify their decision to hire the candidate; top factors that influenced their hiring decision included:• 48% of candidates background supported their qualifications
for the job • 43% of candidates had great communication skills• 40% of candidates was a good fit for the company's culture• 36% of candidates site conveyed a professional image• 31% of candidates had great references posted about them by
others• 30% of candidates showed a wide range of interests• 29% of candidates received awards and accolades• 24% of candidates profile was creative
SCREENING AND BACKGROUND CHECKS
Of those hiring managers who have screened job candidates via the Internet and social networking profiles, one-third reported they found content which caused them to dismiss the candidate from consideration; top areas for concern among these hiring managers included:• 41% of candidates posted information about them drinking or using
drugs• 40% of candidates posted provocative or inappropriate
photographs or information (potential sexual harassment or gender discrimination claims)
• 29% of candidates had poor communication skills• 28% of candidates bad-mouthed their previous company or fellow
employee• 27% of candidates lied about qualifications• 22% of candidates used discriminatory remarks related to race,
gender, religion, etc.• 21% of candidates were linked to criminal behavior• 19% of candidates shared confidential information from previous
employers
MONITORING EMPLOYEES
EMPLOYEE PRODUCTIVITY Nucleus Research July 2009 Survey
237 Randomly Selected Office Workers Employers are losing 1.5 workers per 100 in
employee productivity to social networking Nearly two-thirds of those who have Internet
access visit social networking sites during working hours
Those who visit these sites at work do so for an average of 15 minutes each day
Of those who visit social networking sites at work, 87% could not define a clear business reason for it
Of those who visit social networking sites at work, 6% never use it anywhere else, meaning one in every 33 workers do all of their social networking during work hours
The California Supreme Court has ruled a former employer providing a recommendation owes a duty to protect employers and third parities and cannot misrepresent the qualifications and character of an ex-employee where there is a
substantial risk of physical injury.(Randi W. v. Muroc Jt. Unified School District (1997) 14 Cal.4th 1066.)
The law arguably places employers who give recommendations in a Catch-22, which ultimately raises the risks to the insurers – if an employer fails to disclose an accusation because of insufficient credible evidence, then the employer risks
being sued by third party victims; however, if the employer does mention an accusation, the ex-employee can arguably sue for defamation.
“It may look harmless, but it's a legal land mine for employers.”
The National Law JournalJuly 6, 2009
RECOMMENDATIONS
POTENTIAL RISKSINVASION OF PRIVACY CLAIMS
Generally, under federal and California state law, employers may utilize social networking sites to conduct background checks on employees if:• The employer conducts the background check
itself• The site is readily accessible to the public• The employer does not need to create a false
alias to access the site• The employer does not have to provide any false
information to gain access to the site• The employer does not use the information
learned from the site in a discriminatory manner or otherwise prohibited by law
DISPARATE IMPACT DISCRIMINATION CLAIMS
Even where an employer is not motivated by discriminatory intent, employers are prohibited from using a facially neutral employment practice that has an unjustified adverse impact on protected classes According to the latest data
collected from Quantcast, users of social networking sites are primarily Caucasians age 20-40 (on LinkedIn, only 4% of users are African-American, 8% are Asian, and just 2% are Hispanic)
Recruiting on social networking can result in disparate impact on groups without a large social networking presence
DISPARATE TREATMENT DISCRIMINATIONA PICTURE I$ WORTH
A THOU$AND WORD$ AND MOREIf you are not
careful, a picture may be worth a
claim of employment
discrimination.
Take a look at the following slide and photographs which have been uploaded to, and freely obtained from various
FaceBook, MySpace, and blog sites.
What information can you gain from these photos which would otherwise be “off-limits” when making
employment decisions?
UNLAWFUL DISCRIMINATIONWHAT CHARACTERISTICS ARE
PROTECTED? Age (40 years or
older) Association/affiliation
(including political) Disability/medical
condition (physical or mental)
Marital status National
origin/ancestry (including language use restrictions)
Race/color Religion Retaliation for
engaging in protected activity or requesting a protected leave of absence
Sex/gender (including gender identity)
Sexual orientation Veteran status
ON-DUTY CONDUCTImagine you are the manager of a Burger King restaurant and you have just discovered how
to use MySpace. You decide to check the profiles of the employees who work the
midnight shift. While perusing one employee's profile, you notice a link to a
video.
As you click on the link, you are immediately faced with the employee, possibly in his birthday suit, taking a bath in one of the
restaurant's utility sinks.
You instantly imagine every horrible situation that may result from this incident: health
violations, customers getting sick, bad public relations.
This situation is no fabrication. It actually occurred at a Burger King in Xenia, Ohio.
WORKPLACE TWITTERWHAT WOULD YOU DO?
MANAGING RISKS OF MONITORING EMPLOYEE SOCIAL NETWORKING
Employers have the right to monitor employees’ social networking activity if it occurs during work hours and as it relates to the employer’s business
Employers can reduce the potential of claims for invasion of privacy and discrimination by:• Ensuring employees are aware
their computer usage may be monitored (policy, policy, policy)
• Monitor everyone – and equally• Use reliable monitoring
techniques
LOSS CONTROL RECOMMENDATIONSConstruct Clear Policies on
Employee and Applicant Screening Processes
When screening applicants and researching employees on social networking and blog sites, employers should create strict policies concerning which company representatives may research individuals, what they may research, and what methods of research they may use
In order to guard against discrimination suits, employers should designate a neutral party who is not an employment decision-maker to research the applicant or employee’s social networking profiles and blogs
Employers should instruct that neutral party to withhold any and all information pertaining to an individual’s protected class or characteristics when reporting back to the decision-maker
The neutral party should not unnecessarily delve into research that would focus on any of these protected traits
LOSS CONTROL RECOMMENDATIONSConstruct Clear Policies on
Employee and Applicant Screening Processes
When researching employees or screening applicants on social networking and blog sites, individuals conducting research should not employ questionable tactics to gain access to profiles, blogs, and other information
Employers should not try to “friend” an applicant or employee for the primary purpose of investigation
Employers should also not attempt to obtain passwords or access to the profile from other employees, as the other employees may feel compelled or obligated to provide the employer such information
LOSS CONTROL RECOMMENDATIONSConstruct Clear Policies on Employee
Use The policy should be designed to implement clear rules regarding the extent of allowable usage and whether it is permissible for employees to affiliate themselves with the company
Social media policies should be developed along the same guidelines as electronic communication policies and incorporated into existing confidentiality and technology policies whenever possible
The policy should be disbursed in a manner that will provide confirmation that the employees have read and understood the policy
Employers should also take care to ensure the policy is effectively communicated to the workforce and should consider providing training sessions or include the content of the policy in orientation seminars
LOSS CONTROL RECOMMENDATIONSWhat Should Be Included In the Policy
(Include a specific statement of what is prohibited.)
Disclosing confidential or proprietary information
Disclosing the name of the business in personal websites or purely social networking sites except professional networking sites (e.g., LinkedIn)
Revealing the name of the company on a site with sexual or violent content
Using the company's intellectual property (e.g., trademarks)
Infringing on the intellectual property rights of others
LOSS CONTROL RECOMMENDATIONSWhat Should Be Included In the Policy
(Include a specific statement of what is prohibited.)
Making statements adversely affecting the company's interests or reputation
Criticizing customers or other important business partners
Making statements supporting competitors
Issuing defamatory, harassing, or disparaging language
Issuing content that violates the law (e.g., obscenity)
Writing or commenting on content that would constitute a violation of any other policies, rules, standards of conduct, or requirements applicable to employees
