12/3/2013
Session No. T06:
Social Media
Pitfalls for Employers
Presented by:
Diana Hawkins
[email protected]
April 29, 2014
Atlanta · Baltimore · Boston · Charlotte · Chicago · Cleveland · Columbia · Columbus · Dallas · Denver · Fort Lauderdale · Gulfport · Houston · Irvine ·
Kansas City · Las Vegas · Los Angeles · Louisville · Memphis · New England · New Jersey · New Orleans · Orlando · Philadelphia · Phoenix ·
Portland · San Antonio · San Diego · San Francisco · Tampa · Washington, DC
Can I…
Fire an
employee who
calls her boss a
psychiatric
patient, a
“d***”, and a
“scumbag” on
facebook?
Can I . . .
Hey Joe, I’m going to
need your twitter
password.
Ask an
employee or
job applicant
to provide his
username and
password to
his twitter
account?
1
12/3/2013
Can I . . .
Fire an employee
who posts
inappropriate
photos of herself
in her work
uniform on her
personal blog?
Social Media Pitfalls
for Employers
Presented by:
Diana E. Hawkins
Phone: (614) 221-1425
Email: [email protected]
April 29, 2014
www.laborlawyers.com
Atlanta· Boston
Boston
Charlotte· Chicago
Chicago
Cleveland
Columbia
Columbus
Dallas
Denver
Fort Lauderdale
Houston
Atlanta · Baltimore
· Charlotte
· Cleveland
· Columbia
· Columbus
· Dallas
· Denver
· Fort Lauderdale
· Gulfport
· Houston · Irvine ·
Kansas
City
Las ·Vegas
Los· Angeles
Memphis
New England
New· Orlando
Jersey ·New
Orleans · Phoenix ·
Kansas CityIrvine
· Las Vegas
· Los
Angeles
Louisville
Memphis Louisville
· New England
· New Jersey
· New Orleans
Philadelphia
Orlando Philadelphia
Phoenix
Diego
San ·Francisco
Tampa Washington,
DC
Portland · San
Antonio Portland
· San DiegoSan
· San
Francisco
Tampa · Washington,
DC
You mean there’s more than just facebook
facebook?
?
2
12/3/2013
Social Media
2013 Update
Why Should You Care About Social
Media?
Screen Sparingly
Tip #1
Some employers now search Google as part
of their regular background checks for
applicants
Employment Screening Tool?
3
12/3/2013
Using the Internet for Screening
facebook profiles may indicate applicant:
Race
Religion
Disability
Sexual orientation
Or other protected categories
Employment Screening Tool?
y
Employers that rely on information
gathered from social media websites
should be sure to obtain this information
in a lawful manner
Fair Credit Reporting Act
Background Check Requirements
Stored Communications Act
Employment Screening Tool?
4
12/3/2013
Handle discipline
consistently
Tip #2
The Singing Barista
•A Starbucks barista posted
a YouTube video singing a
song in his green apron,
complaining about the
customers”
“annoying
annoying customers
•In just 2 days, the video
went “viral” and had more
than 40,000 views and
making national headlines
All discipline based on online content must
be handled in a consistent, nondiscriminatory and non-retaliatory
manner.
Handle All Discipline Consistently
5
12/3/2013
Pink Slip
Scott, a social media strategist for New Media Strategies (NMS),
thought he was signed into his own twitter account when he
tweeted: “I find it ironic that Detroit is known as the #motorcity
and yet no one here knows how to f****** drive.” He actually
tweeted it from the Chrysler corporate twitter account.
account Chrysler did
not renew its contract with NMS, and Scott was fired.
Be aware of
privacy laws
Tip #3
Federal statute that prohibits
intentional, unauthorized access
to private electronic
communications such as
facebook or Google
Creates privacy expectation in
private electronic
communications
Stored Communications Act
6
12/3/2013
Pietrylo Case:
Password protected forum for
employees
Management requested access
Employees terminated based
on content found on blog
Jury found in favor of
employees
Stored Communications Act
Pure Power Bootcamp
Employer logged into
Hotmail and Gmail accounts
employee had used during
work hours and on work
computer
Employee left username and
password filed on computer
Court found violation of SCA
Stored Communications Act
Pause before you
discipline
Tip #4
7
12/3/2013
y
y
y
y
The law gives employees the right to discuss
their wages, benefits, supervisors, and other
terms and conditions of employment.
Firing an employee for doing so is unlawful.
But what if the discussion occurs on facebook
or twitter?
General Counsel says that social media is the
21st century equivalent of the “water cooler.”
National Labor Relations Act
y
y
Protected
Referring to
supervisor as a
psychiatric patient, a
“d***,” and a
“scumbag.”
Criticizing manager
and posting:
“t
“tomorrow
I’
I’m
bringing a California
workers’ rights book
to work”
y
y
Unprotected
Newspaper reporter’s
tweet: “What?!? No
overnight homicide?
WTF? You’re slacking
Tucson.”
Car salesman’s
facebook comment
id t pictures:
i t
on accident
“This is your car: This
is your car on drugs."
Social Media Posts
5 QUESTIONS TO ASK BEFORE
TAKING ACTION
1.
2.
3
3.
4.
5.
Does the post address wages or
working conditions?
In what context was the post made?
Does the post trigger a duty to
investigate?
Who is posting?
How will this affect the company’s
reputation?
8
12/3/2013
Remind
supervisors to
exercise good
judgment
Tip #5
Caution managers on pitfalls of becoming
“friends” with employees on social
networking sites.
Don’t reveal anything you wouldn’t say or post in
the break room.
Diligently use privacy controls to manage flow of
information
information.
Could become part of harassment or
discrimination claim even though “personal”
page.
Claims from a Wall Post
y
Potential claims lurking on social
networking websites
“Sexting” with a co-worker
Getting “poked” by the boss on facebook
Individual discussing medical
condition/disability
diti /di bilit on facebook
f
b k
y
Tech-based harassment claims are on the
rise
Claims from a Wall Post
9
12/3/2013
Develop a
lawful policy
Tip #6
Weigh
the risks
Train
employees on the
policy
Policy on Social Networking
™ Policy
Provision No. 1: Employees are
prohibited from disclosing or communicating
information of a confidential or sensitive
nature, or non-public information concerning
the company, on or through company
property to anyone outside the company
without prior approval of senior management
or the law department.
™ Lawful
or unlawful under the NLRA?
Revised Communications Policy
10
12/3/2013
Outcome: Unlawful
Why?
A rule precluding employees from discussing terms
and conditions of employment, or sharing
information about themselves or their fellow
employees with outside parties violates Sec.
Sec
8(a)(1).
Irrelevant that policy only prohibited
communications/ disclosures made on/through
company property.
Revised Communications Policy
–
Policy Provision No. 2: Employees are
prohibited from using the company’s name or
service marks outside the course of business
without prior approval of the law department.
–
Lawful or unlawful under NLRA?
Prior Approval Needed
y Outcome:
Unlawful
y Reasons:
Employees have Sec. 7 right to use their
employer’s name or logo in conjunction with
protected concerted activity.
p
y
Could be construed to restrict employees’
Section 7 rights to use the employer’s name
and logo while engaging in protected concerted
activity.
Prior Approval Needed
11
12/3/2013
•
Policy Provision No. 3: Employees are
prohibited from publishing any representation
about company without prior approval by
senior management and the law department.
This prohibition includes statements to the
media, media advertisements, electronic
bulletin boards,
boards weblogs,
weblogs and voice mail.
mail
•
Lawful or unlawful under NLRA?
Prior Approval Needed - Again
y
Outcome: Unlawful
Sec. 7 protects employee communications to the
public that are part of and related to an ongoing
labor dispute.
A rule prohibiting employee communications to the
media or that requires prior authorization for such
communications is overbroad.
This policy goes further, restricting all public
statements regarding the company, which would
include protected Sec. 7 communications among
employees and between employees and a union.
Prior Approval Needed - Again
•
Policy Provision No. 4: Social networking
communications must be made in an honest,
professional, and appropriate manner, without
defamatory or inflammatory comment
regarding the employer, its subsidiaries, their
shareholders, officers, employees, customers,
suppliers, contractors, and patients.
•
Lawful or unlawful under NLRA?
Social Network Policy
12
12/3/2013
y Outcome:
y
Unlawful
Reasons:
Terms like “professional” and “appropriate”
could be construed by employees to prohibit
them from communicating on social
networking sites with other employees or with
third parties about protected concerns.
Social Networking Policy
y A confidentiality provision that prohibits
employees from “discussing among themselves, or
sharing with others, information relating to wages,
hours, or working conditions, or other terms and
conditions of employment” is unlawful.
Ex: “Salary information is confidential. Employees may
b di
be
disciplined,
i li d up tto and
d iincluding
l di
ttermination,
i ti
ffor
sharing confidential salary information.”
y Unlawful regardless of whether enforced to
restrict Section 7 activity.
Confidentiality Policies
y “Chain of Command” only for complaints =
unlawful
y NLRB: employees have a protected right to
solicit support and sympathy from co-workers and
third-parties; requirement that all complaints
proceed through a “chain of command” could chill
that right.
right
y This does not mean employers cannot establish
a reporting procedure for discrimination and
harassment complaints.
Policies for Employee Complaints
13
12/3/2013
•
Ohio Senate Bill 45
•
SNOPA?
What’s next?
y
Review your policies
y Train your
supervisors/managers
y Train your employees
y Monitor your online
presence
What You Should Do Now
y Incorporate
other policies
(harassment, workplace
violence, etc.)
y Prohibit
malicious, obscene,
threatening, intimidating,
bullying etc.
bullying,
etc behavior
y Maintain
confidentiality (be
sure to define)
What You Should Do Now
14
12/3/2013
What questions do you have about social
media in your workplace?
April 29, 2014
www.laborlawyers.com
Atlanta· Boston
Boston
Charlotte· Chicago
Chicago
Cleveland
Columbia
Columbus
Dallas
Denver
Fort Lauderdale
Houston
Atlanta · Baltimore
· Charlotte
· Cleveland
· Columbia
· Columbus
· Dallas
· Denver
· Fort Lauderdale
· Gulfport
· Houston · Irvine ·
Kansas
City
Las ·Vegas
Los· Angeles
Memphis
New England
New· Orlando
Jersey ·New
Orleans · Phoenix ·
Kansas CityIrvine
· Las Vegas
· Los
Angeles
Louisville
Memphis Louisville
· New England
· New Jersey
· New Orleans
Philadelphia
Portland · San
Antonio Portland
· San DiegoSan
· San
Francisco
Tampa · Washington,
DC
Orlando Philadelphia
Phoenix
Diego
San ·Francisco
Tampa Washington,
DC
Thank You!
Presented by:
Diana E. Hawkins
Phone: (614) 221-1425
Email: [email protected]
April 29, 2014
www.laborlawyers.com
Atlanta· Boston
Boston
Charlotte· Chicago
Chicago
Cleveland
Columbia
Columbus
Dallas
Denver
Fort Lauderdale
Houston
Atlanta · Baltimore
· Charlotte
· Cleveland
· Columbia
· Columbus
· Dallas
· Denver
· Fort Lauderdale
· Gulfport
· Houston · Irvine ·
Kansas
City
Las ·Vegas
Los· Angeles
Memphis
New England
New· Orlando
Jersey ·New
Orleans · Phoenix ·
Kansas CityIrvine
· Las Vegas
· Los
Angeles
Louisville
Memphis Louisville
· New England
· New Jersey
· New Orleans
Philadelphia
Portland · San
Antonio Portland
· San DiegoSan
· San
Francisco
Tampa · Washington,
DC
Orlando Philadelphia
Phoenix
Diego
San ·Francisco
Tampa Washington,
DC
15