What’s Not to LIKE About
Social Media at Work
Mark D. Tolman
[email protected]
(801) 534-7232
www.joneswaldo.com
The information provided during this presentation is provided for general informational purposes only and should
not be construed as legal advice or legal opinion. You are encouraged to consult with your employment counsel
concerning any specific legal questions you may have.
2010 EEOC STATS
There’s lots to like about Social Media in the workplace
• New avenue to market and promote your business
• An effective recruiting tool
• Opportunities for interaction and networking
But there’s lots not to like too…
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2010 EEOC STATS
Social Media Landmines
• Employees create a few social media landmines…
• Drain on productivity
• Means for harassment and discrimination
• Risk of disclosure of confidential information
• Platform for disparagement
• Employers do too…
• Inappropriate use as an applicant/employee screening
tool
• Theater for sock puppetry
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2010 EEOC STATS
Mapping Out Social Media Landmines with Clear Policies
• Avoid the risks of using social media as a screening tool.
• Learning too much about applicants and employees can be
harmful to your health.
• Limit your employees’ disruptive online behavior without running
afoul of the National Labor Relations Board (NLRB).
• Policies must preserve your employees’ right to engage in
“concerted activity” online.
• Take advantage of social media as a platform to market your
company, without ticking off the Federal Trade Commission
(FTC).
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Social Media
a Screening
Tool
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2010 EEOC STATS
Social Media as a Screening Tool
• Be careful about what you learn online.
•
•
Tempting, of course, because there is a host of helpful information online:
•
Evidence of good or bad judgment
•
Details about experience
But when you are defending against a discrimination charge, ignorance
truly is bliss.
•
Social media sites may reveal many protected characteristics:
•
Race, religion, color, national origin, pregnancy, disability, age,
military status, etc.
•
“Great job interview today. Maybe I can finally get insurance
benefits to care for my illness.”
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2010 EEOC STATS
Social Media screening may cause problems under GINA.
• GINA—Genetic Information Nondisclosure Act—
prohibits employers from acquiring genetic information.
• Not uncommon for people to post genetic
information.
• For example, an applicant or employee may discuss a
family history of cancer or other illness.
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2010 EEOC STATS
Social Media screening may also run afoul of state
privacy laws.
• A few states have adopted social media privacy laws
that make it illegal for an employer to ask an employee
for their social media account information (i.e., to
require that an applicant or employee “friend” an
employer or otherwise grant access to their account).
• California, Illinois, Michigan, Maryland, New
Jersey
• There is no such law in Utah. Not yet anyway.
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2010 EEOC STATS
The EEOC has weighed in on screening tools
• Online screening tools, like other background
checks, may be used so long as only job-related
factors are considered.
• Easier said than done. How do you prove that
only job-related factors were considered?
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2010 EEOC STATS
The EEOC has weighed in on screening tools.
• Consider what David Lopez, EEOC general counsel, has to
say about social media as a screening tool:
• “It’s important to identify discriminatory hiring
practices and policies that are excluding people
unlawfully from the workplace. . . . I think [employers]
need to be very cautious doing online background
checks. The employer should examine how it recruits
and hires new people. Once you start digging, it’s not
always passive.” Houston Chronicle, April 2011
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2010 EEOC STATS
Is Social Media screening worthwhile?
• SHRM published a survey in August 2011
concluding that few employers use social
networks to screen job candidates.
• 18 % of polled employers use social media to screen
applicants.
• Only 30% of polled employers actually eliminated
someone from consideration based on information
obtained through social media screening.
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2010 EEOC STATS
Social Media Screening Policy Options
• Just don’t do it. Employers survived for years without relying on social
media to screen applicants and keep up on employees. You can too.
• But if you just cannot resist…then establish clear, written procedures.
• You may have to justify your job-related considerations.
Documentation should plainly show the reasons for any employment
decision.
• Use a structured process with a clear division of responsibility for HR
professionals and hiring managers.
• Trained HR professionals examine social media and pass along only
job-related information to decision makers.
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QUESTIONS?
Limiting
Disruptive
Behavior
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Limiting
Disruptive
Behavior
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Limiting
Disruptive
Behavior
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What can an employer do when employees speak ill of the
workplace, the company, their coworkers or managers?
• It depends on whether the employee is engaged in behavior that
is protected by the National Labor Relations Act (NLRA).
The National Labor Relations Board (NLRB) has provided guidance for
when an employee’s social media behavior is protected by the NLRA
and when an employer’s social media policies run afoul of the NLRA.
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National Labor Relations Board
2010 EEOC STATS
What is it? An independent federal agency like the EEOC.
Members are political appointees and tend to reflect the party
ideology of the President who appoints them.
What does it do? For our purposes, it mainly enforces the
federal National Labor Relations Act (NLRA).
“The law we enforce gives employees the right to act together to
try to improve their pay and working conditions or fix job-related
problems, even if they aren't in a union.” (NLRB website)
(emphasis added)
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National Labor Relations Board
2010 EEOC STATS
“Employees shall have the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, and shall also have the right to refrain from any
or all such activities.” -Sec. 7, NLRA
Key phrase = acting in concert
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National Labor Relations Board
2010 EEOC STATS
Is this acting in concert?
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National Labor Relations Board
2010 EEOC STATS
The NLRB focuses on three questions when deciding if concerted activity is protected:
Is the activity concerted?
Generally, this requires two or more employees acting together to improve wages or working
conditions. But the action of a single employee may be considered concerted if he or she
involves co-workers before acting, or acts on behalf of others.
Does it seek to benefit other employees?
Will the improvements sought – whether in pay, hours, safety, workload, or other terms of
employment – benefit more than just the employee taking action? Or is the action more along
the lines of a personal gripe, which is not protected?
Is it carried out in a way that causes it to lose protection?
Reckless or malicious behavior, such as sabotaging equipment, threatening violence, spreading
lies about a product, or revealing trade secrets, may cause concerted activity to lose its
protection.
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2010 EEOC STATS
Limiting Disruptive Activity without Impinging on
Concerted Activity
• NLRB takes the position that concerted activity on social
media sites is protected—even though such activity may be
open to the rest of the world.
• Trio of opinions from the NLRB General Counsel’s Office:
August 18, 2011, January 25, 2012, & May 30, 2012
• The first two opinions focus on disciplinary decisions and the
last on social media policies.
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2010 EEOC STATS
Limiting Disruptive Activity without Impinging on
Concerted Activity
• Examples from NLRB opinions
•
One employee tells a second employee that her performance is lacking
and that they should take the issue up with their supervisor. Before the
supervisor meeting, the second employee takes to Facebook to complain
about the first employee and to ask her co-workers for input. Four coworkers weigh in. Several posts are sarcastic and even profane.
•
•
Employer terminates the second employee and the four other
employees who participated in the Facebook exchange.
Did the employer violate Section 7?
Yes. NLRB calls this a textbook example of concerted activity. Sarcasm and
swearing was not malicious.
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2010 EEOC STATS
Limiting Disruptive Activity without Impinging on
Concerted Activity
• Examples from NLRB opinions
•
An employee takes to Facebook to complain about her supervisor – she
calls him a “scumbag.” The employee does not seek input from her coworkers, but she gets it – her post drew several supportive responses
from co-workers, which led to more negative remarks by the employee
about her supervisor. Employer terminated this employee because she
disparaged her supervisor and violated a policy that prohibits depicting
the company in any media without prior permission.
•
Did the employer violate Section 7?
Yes. Policy was overbroad and did not contain an express exception for “section
7” conduct. And the name-calling was not malicious and unaccompanied by any
physical threats.
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2010 EEOC STATS
Limiting Disruptive Activity without Impinging on
Concerted Activity
• Examples from NLRB opinions
• A bartender posted a few disparaging remarks about the bar
(his employer) on his Facebook page—he said that he had not
received a raise in five years and that the bar’s customers
were “rednecks.” None of his co-workers respond. The
employer terminates his employment.
• Did this employer violate Section 7?
No. The employee was merely griping about work, and did not
attempt to engage any coworkers in a conversation about the terms
and conditions of work.
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2010 EEOC STATS
Limiting Disruptive Activity without Impinging on
Concerted Activity
• Now back to our question: What can an employer do when
employees speak ill of the workplace, the company, their
coworkers or managers?
• Takeaways from the first two NLRB opinions:
• Mere griping, without involvement or solicitation of coworkers , is not protected by the NLRA.
• But when two or more employees are talking about work—
even in a negative way and even when the rest of the world
can see it on social media—you should tread lightly.
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2010 EEOC STATS
Drafting an effective Social Media Policy Without
Impinging on Concerted Activity
•
Third NLRB opinion (May 2012) focused on social media policies that violate
Section 7.
•
Two step inquiry to determine if a policy is compliant.
•
Does the policy explicitly restrict Section 7 protected activities (e.g., “do not
discuss your compensation with co-workers)? Then it is unlawful. If not, …
•
Would an employee reasonably construe the policy to prohibit any Section 7
activity?
•
Consider whether the policy was adopted in response to Section 7
conduct.
•
Or whether it has been applied to Section 7 conduct.
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2010 EEOC STATS
Drafting an effective Social Media Policy Without
Impinging on Concerted Activity
• NLRB tells us the key to an effective social media policy:
Context
• Your policy should avoid sweeping bans, refer when
appropriate to other detailed provisions (like your antiharassment policy), and plainly define any prohibited
behaviors.
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2010 EEOC STATS
Sample Policies from May 2012 NLRB Opinion
• Defamation Policies
• Unlawful: You may not make disparaging or defamatory
comments about [the Company], its employees, officers,
directors, vendors, customers, partners, affiliates, or our or
their products/services.
• Unlawful: Be sure that your posts are completely accurate.
• Lawful: Never post information or rumors that you know to
be false about [the Company], fellow associates, members,
customers, suppliers or people working on behalf of [the
Company] or competitors.
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2010 EEOC STATS
Sample Policies from May 2012 NLRB Opinion
• Work and Play Well with Others
• Unlawful: Adopt a friendly tone when engaging online. Don’t pick
fights. When engaging others online, adopt a warm and friendly
tone that will encourage others to respond to your postings and
join your conversations.
• Unlawful: Think carefully about “friending” co-workers on external
social media sites.
• Lawful: Harassment, bullying, discrimination, or retaliation that
would not be permissible in the workplace is not permissible
between co-workers online, even if it is done after hours, from
home and on home computers.
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2010 EEOC STATS
Sample Policies from May 2012 NLRB Opinion
•
Nondisclosure/Confidentiality Policies
•
Unlawful: Do not comment on legal matters, including pending litigation.
•
Unlawful: You should never share confidential information with another
team member unless they have a need to know the information to do
their job.
•
Unlawful: If you need to share confidential information with someone
outside the company, confirm there is proper authorization to do so.
•
Lawful: Maintain the confidentiality of [the Company’s] trade secrets and
confidential information. Trade secrets may include information regarding
the development of systems, processes, products, know-how and
technology. Do not post internal reports, policies, procedures or other
internal business-related confidential communications.
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2010 EEOC STATS
Sample Policies from May 2012 NLRB Opinion
• A “Savings Clause” will not save your policy
• Example: “This policy will not be construed or
applied in a manner that improperly interferes with
employees’ rights under the National Labor Relations
Act.”
• NLRB says such a clause “does not cure” otherwise
unlawful provisions of an employer’s social media
policy.
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2010 EEOC STATS
Sample Policies from May 2012 NLRB Opinion
•
NLRB reviewed a total of 7 social media policies. And dissected, tore apart,
and criticized as unlawful all but one of them.
•
But the NLRB gave a gold star to the final policy it reviewed, concluding “that
the Employer’s entire revised social medial policy . . . is lawful.” The NLRB
attached this entire “lawful” policy to its May 2012 report.
•
If imitation is the sincerest form of flattery, consider adopting whole cloth
this NLRB-approved policy.
•
A link to the NLRB’s final social media report—including its approved
policy (pages 22-24)—is found on the NLRB website at:
http://nlrb.gov/news/acting-general-counsel-releases-report-employer-social-mediapolicies
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2010 EEOC STATS
Gold Star Policy
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QUESTIONS?
No Sock
Puppets
at Work!
2010
EEOC STATS
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2010 EEOC STATS
What is an online sock puppet?
• Online sock puppetry is the act of creating a fake online
identity to praise, defend, or create the illusion of
support for one’s self or company (e.g., on a comment
or review board).
• Sock puppets pose as independent third parties who
are unaffiliated with the disguised puppeteer.
• Sock puppetry can land you in hot water with the
Federal Trade Commission (FTC) and lead to hefty fines.
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The FTC is fine with
2010
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STATS
these work sock puppets.
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But2010
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ones…
John Mackey, CEO of Whole Foods as “Rahodeb”
• As “Rahodeb,” he posted more than 1,000 comments on a Yahoo
Finance message board over seven years, championing his own
company and attacking his competitor, Wild Oats Market. Once,
he even wrote: “I like Mackey’s haircut. I think he looks cute!”
• Whole Foods later acquired Wild Oats and many, including the FTC,
thought Mackey’s sock puppetry crossed the line.
http://www.nytimes.com/2007/07/12/business/12foods.html?_r=0
• For this and other reasons, the FTC filed a lawsuit against Whole
Foods to block its acquisition of Wild Oats. After a costly battle,
much of the acquisition was unwound.
http://www.ftc.gov/opa/2009/03/wholefoods.shtm
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But2010
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ones…
Legacy Learning Systems – sold DVD guitar lessons online
• Affiliate marketers falsely posed as ordinary consumers
and/or independent reviewers who endorsed Legacy’s
products on blogs or articles, with links to Legacy’s
website. These marketers were paid for every sale they
generated. But of course, they made no mention of this
bias in their reviews and endorsements.
• Legacy had to pay a $250,000 fine to the FTC.
http://www.ftc.gov/opa/2011/03/legacy.shtm
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2010 EEOC STATS
FTC targets sock puppets in its 2009 revised
Guide.
•
“Material connections” must be disclosed to the consumer in
online advertising. For example:
• Affiliate bloggers who receive pay for an endorsement.
• Employees who make statements about products online.
•
Learn more about the revised FTC Guide here:
http://www.ftc.gov/opa/2009/10/endortest.shtm
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2010 EEOC STATS
Adopt a no-sock-puppets policy.
•
Consider the following example taken from the NLRB’s “gold star”
social media policy:
• Express only your personal opinions. Never represent yourself as a
spokesperson for Employer. If Employer is a subject of the content
you are creating, be clear and open about the fact that you are an
associate and make it clear that your views do not represent those
of Employer, fellow associates, members, customers, suppliers or
people working on behalf of Employer. If you do publish a blog or
post online related to the work you do or subjects associated with
Employer, make it clear that you are not speaking on behalf of the
Employer. It is best to include a disclaimer such as “The postings
on this site are my own and do not necessarily reflect the views of
Employer.”
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QUESTIONS?
Mark D. Tolman
[email protected]
(801) 534-7232
www.joneswaldo.com