My Space® or Your Space?
Social Networking
SOUTH DAKOTA RETAILERS ASSOCIATION
Presented by:
Christopher E. Hoyme
Jackson Lewis, LLP
10050 Regency Circle, Suite 400
Omaha, NE 68114
(402) 391-1991
[email protected]
www.jacksonlewis.com
EMPLOYEE SOCIAL
NETWORKING SITES
Types Of Social Networking
 Email
 Instant
Messaging
 Social
Media Sites
 FaceBook®
 MySpace
 LinkedIn
®
®
 Blogs
 Twitter
®
 On-Line
Media
 YouTube
®
The Internet: Resources And Risks
 The
information age has brought new
resources and new challenges to the
workplace. Increasingly, employers are turning
to the internet to obtain more information about
job applicants. There is a tension, however,
between the need to obtain information and the
risks associated with acting on information
obtained online.
Frequency Of Use During Working Hours
 6%
of employees visit social networking sites only for
business reasons
 5%
…access social networking sites only for personal
reasons
 10%
…access social networking sites for both business
and personal reasons
 52%
…choose not to use social networking sites during
work hours
 26%
…stated the company’s network prevents them from
accessing these sites
SOURCE: http://www.deloitte.com/dtt/cda/doc/content/us_2009_ethics_workplace_survey_220509.pdf
Other Employment-Related Statistics
 74%
of employees surveyed say it’s easy to damage a
company’s reputation on social media.
 53%
of employee respondents said their social networking
pages are none of their employers’ business.
 40%
of business executive respondents disagree, and 30%
admit to informally monitoring social networking sites.
 15%
of employees say that if their employer did something
that they didn’t agree with, they would comment about it on
line.
SOURCE: http://www.deloitte.com/dtt/cda/doc/content/us_2009_ethics_workplace_survey_220509.pdf
Employment-Related Uses by Employees
 Find
jobs.
 Communicate
with other employees.
 Communicate
with clients, vendors or
customers.
 Research
 Personal
communication.
 Spreading
 Dissing
prospective employers.
the word about a product or service.
the job, the boss or coworkers.
Sample MySpace® Page
Sample MySpace® Profile
Employment-Related Uses by Employers
 Maintaining
company sponsored sites
 Branding
or marketing tool
 Introduce
products
 Build
loyalty among employees
 Screen
 Actively
candidates
seek and recruit employees
 Communicate
 Monitor
with employees
the company’s reputation
 Increase
customers and customer loyalty
Potential Liabilities
 General
Areas
 Exhibitionism:
lack of filtering when posting
information
 Voyeurism:
 Electronic
searching for information
Footprints
 Shows
where you have been and what you have been
doing on line
 Can
be used for e-discovery
Risks for Employees
 Disclosure
of employer’s trade secrets or other
confidential information
 Liability
for defamation and libel
 Spreading
 Invasion
untrue and disparaging information
of Privacy Claims
 Harassment/Bullying
 Disqualification
from jobs
 Posted
information may reveal poor communication
skills, drinking, sexual content, lies about
qualifications, attitude toward previous employer, etc.
 Copyright
infringement/plagiarism
Risks for Employers
 Harassment
 Textual
or Bullying by Employees
harassment or sexting
 Discrimination
 Employer
 Ratification
sponsorship of blog
of content by inaction
 Obligation
to take action to prevent or eliminate inappropriate
content once on notice
 Employer
 Sites
viewing applicant information
may contain information regarding protected status
 Information
can be garnered that cannot be asked in an interview
 May
become evidence of what you knew when making
employment decision.
 Difficult
for employer to prove it did not view and rely upon the
information when making decision
Risks for Employers
 Using
the Web to Make Hiring Decisions
 Many
employers and job recruiters check out potential
employees on the Web.
 Using
search engines such as Google or Yahoo and
internet sites such as PeopleFinders.com,
Local.Live.com or Zillow.com
 Some
studies show more than half of employers use
some kind of screening on social networking sites.
Using Social Media for Recruitment
Employees – through FaceBook®
presence or advertising, LinkedIn® discussion
board or YouTube®
 Attract
 Source
– Twitter®, LinkedIn®
– gather information from target
employees for profiles
 Engage
 Screen
– look at profiles
the deal – welcome through
conversations on social network
 Close
Risks for Employers
 Hiring
Issues Associated with Using the Web
 Lawful
background checks?
 Lawful-off
Even
duty conduct?
if not unlawful, employer may be
making employment decisions based on
inaccurate information.
Risks for Employers
 Hiring
Issues Associated with Using the Web
 Access
to information regarding protected status?
 Learn
about applicant’s workers’ compensation
claim?
 Learn
about applicant’s bankruptcy?
Good Practice for Internet Recruiting
 Do
searches consistently.
 Document
them.
 Determine
how the information found is
relevant to the job.
 If
make employment decision, based on
information found, maintain records according
to state and federal law.
Risks for Employers
 Privacy
Concerns
 Does
monitoring of or surveillance of employee
blogs or social sites violate employee’s right to
privacy?
 Generally,
 Unless
no right to privacy.
access is restricted by
poster.
 Wage
and Hour Violations
 Does
time spent maintaining or contributing to
company-sponsored blog or checking email
constitute work under the FLSA?
Risks for Employers
 Negligent
Referral
 FaceBook®,
LinkedIn®, and Twitter® allow
users to post recommendations from their
employers.
Employee
expects detailed favorable
recommendation
Favorable
on-line reference may conflict
with employee performance evaluations
Negative
online recommendation may be
the basis for defamation claim.
Risks for Employers
 Violations
 Posting
of NLRA protected rights
may constitute “concerted action”
 NLRA
protects discussion of wages, hours and
working conditions.
 Unfair
Competition/False Advertising
 Federal
Trade Commission Guides
 Employer
may be liable for violation if employee
does not disclose relationship to employer when
employee posts regarding products and services
Risks for Employers
 Wrongful
Termination
 Potential
Sarbanes Oxley violation where employee
reports unlawful conduct online and is terminated
 Not
sure yet whether publication in a blog satisfies
reporting requirement
 Potential
NLRA violation where employee complains in
blog about company practices regarding pay, working
conditions
 Potential
anti-retaliation violation where employee
terminated for complaining in blog that manager treats
blacks differently than whites
Risks for Employers
 Disclosure
of Trade Secrets or Proprietary
Information
 Risk
of disclosing
Customer
Financial
databases
reports
Privileged
passwords
Risks for Employers
 Defamation
or libel
 If
information is posted on company blog or company
owned equipment, employer may be named as a
defendant.
 Copyright
infringement violations
 Unauthorized
use of company logos
Risks for Employers
 Violations
of Security Laws
 Disclosure
 Illegal
of non-public material information
Use of Genetic Information
 Genetic
Information Nondisclosure Act (GINA)
 Cannot
discriminate based on genetic information
 Cannot
make employment decisions based on
genetic information
 Strict
confidentiality requirements
Best Practices For Employees
 Make
employees aware that they are subject to
same privacy laws as employers.
 Place
employees on notice regarding
appropriate use of internet.
 Ensure
employees understand that posting
equals world-wide publication.
 Make
employees aware of the privacy rights of
others.
Best Practices for Employers
 Be
proactive.
 Adopt
 Train
a clear policy.
employees on the
proper use of the Internet
 Consider
a total ban on the Internet during
working hours.
 Place
employees on notice regarding potential
monitoring.
 Be
consistent in disciplining for violations.
 Understand
the risk inherent in using the
Internet and develop policies to manage
potential pitfalls.
Key Provisions of a Social Media Policy
 Expectation
of Privacy
 Eliminate
employee expectation of privacy
when using company owned technology.
 Provide
notice that monitoring will occur.
 Consider
informing employees and potential
employees that you intend to monitor the
Internet.
Obtain
releases for such searches.
Key Provisions of a Social Media Policy
 Posting
During Working Time
 Prohibit
or limit use of social networking or
blogging at work
None
 BUT,
or limited during working hours
protected activity under NLRA
Key Provisions of a Social Media Policy
 Required
 Use
Disclaimers
true identity
 If
mention company and expressing opinion
regarding Company, disclose posting is
opinion of employee
 If
speaking about employer products or
services, disclose employment relationship
Key Provisions of a Social Media Policy
 Employee
Responsibility
 Employee
is responsible for online activity
conducted personally or which can be traced
to Company.
 Anti-Discrimination
Information
and Harassment
posted to blogs should not harass
or attack an employee, contractor, customer
or vendor based upon protected status.
Key Provisions of a Social Media Policy
 All Company Polices apply to online use:
●
Handbook, Policies
●
Confidentiality of sensitive Company data
●
Privacy of personal information
●
Discrimination and Harassment
Key Provisions of a Social Media Policy
 Disclosure
of Confidential Information
 Clearly
prohibit disclosure of confidential
information or trade secrets
 Required
 Prohibit
Authorization
against solicitation of customers,
vendors, clients as friends, unless divulged
and approval in advance.
Key Provisions of a Social Media Policy
 Consequences
Clearly
state that violations of policy can lead
to disciplinary action, up to and including
termination.
 Reporting
Procedure
Provide
procedure for reporting violations of
policy
Designate
someone in Company who can
be contacted regarding questions
Major Court Decisions: Right to Privacy
 O’Connor
v. Ortega, 480 U.S. 709 (1987)
 Established
public employee’s right to a reasonable
expectation of privacy in the workplace
 But
case does not contemplate modern quandary
related to social media
 Quon
v. Arch Wireless
 Scheduled
to be heard before Supreme Court Spring
2010
 Electronic
 Issue
Workplace Privacy Case
: Whether a California police department
violated the privacy of an officer when it read the
personal text messages of his department-issued
pager.
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Presented by:
Christopher E. Hoyme
[email protected]
10050 Regency Circle, Suite 400
Omaha, Nebraska 68114
(402) 391-1991
(402) 827-4232 Direct
www.jacksonlewis.com