three strikes and you’re out! part three: the brave new frontier in employment law – social...
DESCRIPTION
Proprietary & Confidential Social Networking Sites As A Recruiting or Hiring Tool 45% use social networking sites to screen candidates 18% reported finding content encouraging them to hireTRANSCRIPT
Three Strikes and You’re Out!
Part Three:
The Brave New Frontier in Employment Law – Social Media
Jim DrozdowskiV.P. & General Counsel
North Coast Container Corp.
Proprietary & Confidential
Social Networking &Employer Monitoring
Proprietary & Confidential
Social Networking Sites As A Recruiting or Hiring Tool
45% use social networking sites to screen candidates
18% reported finding content encouraging them to hire
FacebookLinkedInMySpaceBlogsTwitter
Proprietary & Confidential
Minimizing Employee Misuse of Social Networking Sites
66% of employers monitor Internet connections
12% monitor the “blogosphere” to see what’s being written about the company
10% monitor social networking sites 43% monitor e-mail
Proprietary & Confidential
Legality & Advisability
Posting personal information without limiting availability weakens the “expectation of privacy”
Employers may lawfully search/Google for information about applicants
Mullins v. Dept. of Commerce, 244 Fed. Appx. 322, 2007 WL 1302152 (Fed. Cir. 5/4/07)
Proprietary & Confidential
posted inappropriate photos or content about drinking or drug use
bad mouthed his/her previous employer, co-workers or clients
made discriminatory comments lied about qualifications shared confidential information
from previous employer
What if, on a Social Networking Site, the Candidate:
Proprietary & Confidential
For Example:
“Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.”
“Who is the hiring manager[?] I’m sure they [sic] would love to know that you will hate the work. We here at Cisco are versed in the web.”
Molly DiBianca, Twitter Saves Cisco a Bundle of Money, Del. Emp. Law Blog (3/30/09)
Proprietary & Confidential
The Other Side of the Coin:
Candidates should be considered solely on the basis of their qualifications and on the likelihood of successful job performance, without regard to any protected characteristic
Ability to do job Interest in job
Proprietary & Confidential
Information to avoid. . .
When/where born Union activities Photographs? Past or current medical
conditions Native language Past litigation experience
Proprietary & Confidential
Potential Landmines in your own posts
Admissions to support co-worker litigation
Admissions to support third-party claims
Bad public relations
Perhaps the Biggest Landmine:National Labor Relations Act
Section 7 of the NLRA protects “concerted activities” “Concerted activities”
2 or more employees Mutual aid and protection
Protections also apply in non-union context
Proprietary & Confidential
Recent NLRB Case
American Medical Response of CT
Dawnmarie Souza, an EMT Souza posts negative
comments about her supervisor on her private Facebook page
Proprietary & Confidential
Recent NLRB Case Souza: “looks like I’m getting some time off. Love
how the company allows a 17 to be a supervisor!” [A “17” is the employer’s code for a psychiatric
patient] Commenter: What happened? Commenter: What now? Souza: Frank being a d***. Commenter: I’m so glad I left there! Commenter: Ohhh, he’s back, huh? Souza: yep has a scumbag as usual [sic] Commenter: I am sorry, hon! Chin up!
Proprietary & Confidential
Other Recent Cases
Five employees fired for posting Facebook comments criticizing their employer’s “staffing levels and workloads”
T.V. reporter who tweeted: “What!?!? No overnight homicide? WTF? You’re slacking Tucson!”
Proprietary & Confidential
Proprietary & Confidential
Legal considerations. . . .
Nexus to job performance “Concerted protected
activity” Consistent enforcement Avoid fine distinctions
e.g., selective enforcement to prevent union chatter
Proprietary & Confidential
More Fun with Social Media
Would you hire this lawyer?
Cleveland Ladies Starting 'Bushes For Bron' Campaign Posted by Vince Grzegorek on Mon, Jun 14, 2010 at 12:08 PM
Sorry, Edward. Cool it with the trimming for a little bit.
Local ESPN radio affiliate WKNR 850 recently launched Beards for Bron, a plea to male Cavs fans everywhere to put down the razor in a show of solidarity for King James and their desire for him to remain in Cleveland. A nice gesture, perhaps, but one that holds approximately zero hope of achieving real change, much like similar movements and gesture throughout the country from cities hoping to lure the Chosen One.Ashlie Case — Cleveland resident, Cavs backer, Snoop fan — has a better idea, one that has potential to actually effect real change.
Witness Bushes for Bron.Ashlie wants Cleveland's ladies to put down the razors, too. Yep, we're talking a town of women going au naturale, boys.
What better way to push the men in the Cavs organization to get their shit together and lock down LeBron? That's motivation, my friends. This could put the whole free agency mess to bed in a matter of weeks.
A real no-brainer. . . .Here's the breakdown from Ashlie herself, exclusive to Scene, on the Lysistrata-esque querrilla
tactics that could save Cleveland.
Bushes for Bron: Snoop approves.
“Bushes for Bron is the feminine counterpart to Beards for Bron. And it is exactly what it sounds like: a resolution by female Cavs fans to refrain from waxing, shaving, or otherwise grooming their ladyparts until LeBron signs up to extend his tenure in Cleveland. No razors, no laser treatments, no Brazilians. (My apologies to Kate at Zen. I'll see you after free agency.) And to the extent anyone still uses Nair, put that away, too.
Obviously, a man sporting a beard is a much more public display of support for retaining our homegrown prodigy. But perhaps the impact of the Bushes campaign will be felt in a much more personal way, and it certainly has the potential to hit closer to home.
I'm not convinced that the moratorium will keep our local hero in a Cavs uniform. Unless, of course, we can convince LeBron's girlfriend to sign on. That would certainly improve our chances.”
Another Facebook Offense • Intermittent FMLA for chronic back pain• Day off due to “crippling” back pain• Facebook photos partying at local Oktoberfest• Employer’s “honest belief” employee engaged in
fraud justifies discharge• FMLA fraud can be a terminable offense
Jaszczyszyn v. Advantage Health Physician Network, (6th Cir., Nov. 7, 2012)
Around the world in 72 hours
Meet Kelly Blazek, the self-proclaimed “Mother” of the Cleveland Job Bank
Receives email from recent college grad/job seeker, wanting to connect on LinkedIn
Copyright North Coast Container 20
Around the world in 72 hours Kelly sends a scathing response:
Copyright North Coast Container 21
Apparently you have heard that I produce a Job Bank and decided it would be stunningly helpful for your career prospects if I shared my 960+ LinkedIn connections with you – a total stranger who has nothing to offer me.
I love the sense of entitlement in your generation. And therefore I enjoy denying your invite.
You’re welcome for your humility lesson for the year.
Don’t ever write me again.
Social Media Lashes Out in Defense of the Job Seeker
Copyright North Coast Container22
It only takes a few shares. Bet her precious
contacts will drop her like a bad habit.
Trust me people.. She may be #IABC, but Kelly Blazek does not represent our profession.
Within 72 hours. . . .
The story made headline news in Cleveland
And on CNN And the BBC
A “Krabby Blazek” parody was created on Twitter
Blazek surrendered her “Communicator of the Year” award
Proprietary & Confidential
QUESTIONS?
Copyright North Coast Container | November 23, 201324