Social Media in the Workplace:
Avoiding Legal Pitfalls
Todd F. Palmer & Timothy J. Connors
Calfee, Halter & Griswold LLP February 13, 2013
Social Media: The Basics
Social Media:
The Basics
Social Media:
The Basics
Facebook stats:
More than 900 million active users, over 525 million daily users
58% of active users log on to Facebook in any given day
Average user has 138 friends
Social Media:
The Basics
Twitter stats:
140 million active users
340 million: tweets per day now
140 million: tweets per day a year ago
3 years, 2 months, 1 day: Time it took to send first billion Tweets
3 days: Time it now takes to send a
billion Tweets
Opportunities
Opportunities
New avenues of communication
New ways to share information that helps all employees in performing their jobs
Decentralized flow of information between
companies and consumers, providing customers with enhanced service and satisfaction
Ties employees more directly to branding and marketing efforts
Opportunities
New opportunities for...
Branding; traditional and viral marketing
Promotions and contests
Customer service and feedback
Responding to rumors, addressing negative publicity, correcting service problems
Building community
For some businesses, SM are no longer optional
Opportunities
New sources of information about employees &
candidates
Previously unattainable information about hobbies, activities, lifestyles of employees and applicants
All too often, the information learned is negative;
may be legitimately disqualifying
But beware: significant risk...
Legal Risks:
Employment Law
Employment Law Risks
Learning protected class status of applicants or employees
Race, age, sex, religion, national origin, disability, pregnancy; in some jurisdictions, sexual
orientation.
Employers cannot take adverse employment actions based on same.
Beware learning of criminal records: new EEOC Guidelines.
Employment Law Risks
Unlawful harassment
SM fosters communication between employees, and between employees and supervisors.
Beware inappropriate communications based on sex, race, religion, and other protected classes; can give rise to harassment claims.
Friend requests = danger zone; especially from supervisor to subordinate.
Employment Law Risks
Retaliation claims
SM sites can be a forum where employees express opposition to perceived discrimination.
Employers who learn of this protected activity can find themselves in a bind; any adverse
employment action can form basis of retaliation claim.
Take care to develop legitimate, non-retaliatory reason for action.
National Labor Relations Act
Social media is (unwittingly) a forum for NLRA protected activity by employees
Online discussion of wages, hours, terms and
conditions of employment is concerted protected activity -- even if done off duty, at home
NLRB: most vigorous employment-related federal agency re: social media
NLRB has decided 30+ social media cases since 2010
Employment Law Risks: NLRA
Employer need not have a union to be covered by NLRA; applies to nonunion companies.
Section 7 rights: employees may act together
(concerted activity) to improve their wages, hours, and all terms and conditions of employment.
Section 7 protects right of employees to discuss wages and conditions of employment with each other, and with third parties.
New NLRB web page to educate non-union employees about their Section 7 rights: http://www.nlrb.gov/concerted-activity
Employment Law Risks: NLRA
NLRA Basics
Employment Law Risks: NLRA NLRA Basics
Common denominator of the NLRB’s social media cases
Any work rule/policy which explicitly prohibits Section 7 activity, or which employees could reasonably construe as prohibiting Section 7 activity, is unlawful
Let’s look through some excerpts of social media policies and how the NLRB has ruled.
Employment Law Risks: NLRA What Is Illegal, and Why
Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are
offline, even if they are unintentional. We expect you to abide by the same standards of behavior both in the workplace and in your social media communications.
Unlawful: Rule prohibits a broad spectrum of
communications that could include criticism of the employer’s policies or treatment of employees -- the type of criticism which is protected by Section 7.
Employment Law Risks: NLRA What Is Illegal, and Why
Adopt a friendly tone when engaging online. Don’t pick fights. Social media is about conversations.
When engaging with others online, adopt a warm and friendly tone that will encourage others to
respond to your postings and join your
conversation. Remember to communicate in a professional tone. ...
Employment Law Risks: NLRA What Is Illegal, and Why
This includes not only the obvious (no ethnic slurs, personal insults, obscenity, etc.) but also proper
consideration of privacy and topics that may be considered objectionable or inflammatory—such as politics and religion.
Employment Law Risks: NLRA What Is Illegal, and Why
Unlawful: Purpose of this rule is to prevent online communications that could become heated or
controversial. But conversations about unionism can become just as heated as politics or religion. The rule prohibits robust but protected discussions about
working conditions or unionism.
Employment Law Risks: NLRA What Is Illegal, and Why
Employees should avoid harming the image and integrity of the company. . .
Unlawful: Employees could construe it to ban protected criticism of the employer’s policies or treatment of employees.
Employment Law Risks: NLRA What Is Illegal, and Why
You may not make disparaging or defamatory comments about [Employer], its employees,
officers, directors, vendors, customers, partners, affiliates, or our, or their, products/services.
Remember to use good judgment.
Unlawful: Employees could reasonably construe this rule as prohibiting protected criticism of the
employer’s labor policies or its treatment of employees.
Employment Law Risks: NLRA So What is Permitted?
Any 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.
Lawful: No harassment, bullying, discrimination, or retaliation -- a list of plainly egregious conduct that cannot be construed to apply to Section 7 activity.
Employment Law Risks:
New Laws re Password Access
Maryland has passed first state statute regarding access to social media:
Prohibits employers or their agents from requesting or requiring access to social media accounts of
employees and prospects
Prohibits employers and their agents from accessing those accounts
Prohibits penalizing employees or refusing to hire prospects who do not divulge passwords
Employment Law Risks:
New Laws re Password Access
At least 12 other states have introduced legislation similar to Maryland’s:
California, Delaware, Illinois, Massachusetts, Michigan, Minnesota, Missouri, New Jersey, New York, South
Carolina, Washington...
and Ohio.
Federal bill has also been introduced: Social Networking Online Protection Act (SNOPA)
Social Media &
Workers’ Compensation
Attempts to Establish the Louisiana-Pacific Defense: Be Careful What You Wish For
– July 2011 I.C. Decision: IW terminated for posting Facebook comments demeaning to her Employer, in violation of Internet Postings Rule – IC rejected Louisiana-Pacific defense, because no
proof IW had received the Internet Postings Rule
Social Media &
Workers’ Compensation
Internet Postings Rule likely interfered with Employee’s Section 7 rights
Section 7 protects Employee speech about the Employer -- even demeaning and critical speech
Lesson: be careful in advising employers on
terminating employees for their social media use
Don’t convert a Workers’ Compensation tactic
into a winning Unfair Labor Practice charge
Social Media &
Workers’ Compensation
Vocational Assessments/PTD Claims
Frequent Users of Facebook and other social medial sites may be putting on display a
vocational asset
IW might be capable of sustained remunerative
employment
Social Media &
Workers’ Compensation
Fraud Investigations
Facebook and other social media postings may reveal activities inconsistent with allowed
conditions or claimed impairments
Other Legal Risks
Defamation
Privacy laws
US and foreign laws on personal data and breaches
Privacy policy violations
Litigation Risks
Discovery tool against Company and its witnesses
Loss of privilege and work product protection
Juror use (misuse?) of social media
Avoiding Legal Pitfalls:
Best Practices
Best Practices:
Social Media Policy
An effective tool in protecting employers against liability and harm to reputation
Not one size fits all. Companies need to consider extent to which they want employees engaging in social media on the job, needs of the business, and corporate culture.
Policy options range from full embrace to complete prohibition.
Be mindful of NLRA considerations in drafting.
Best Practices: Elements of Social Media Policy
Address on-duty and off-duty use
State ground rules for use of social media on the job, using company-provided resources.
State ground rules for off-duty use on employee’s
“home” computer or other non-company resources, when employee identifies the company in his/her profiles or posts.
Best Practices: Elements of Social Media Policy
Restrict use of company names and IP
Ban use of company trademarks and names as components of usernames or other identifiers.
If employees list their place of employment in profiles, place limits on use of company name to prevent appearance that profiles originate from official company representative.
Prohibit employees from proposing or conducting business on behalf of company.
Best Practices: Elements of Social Media Policy
Delineate clear lines of responsibility
Employees solely responsible and liable for posts made outside of company request/outside course and scope of duties.
Employees responsible for any online activity conducted through company computer/network.
Employees responsible for online activity off-duty /through own computer if they identify themselves as company employee.
Best Practices: Elements of Social Media Policy
Require review before posting
On-duty postings/profiles should first be reviewed/approved by management.
When in doubt, employees should check with management prior to posting...
Exception: posts related to employee wages, benefits, terms and conditions of employment, employment policies, or working conditions.
Best Practices: Elements of Social Media Policy
Mandate disclosure of relationship
If employees endorse or promote company goods/services, they must clearly and openly reveal their relationship to the company.
FTC guidelines on endorsements and testimonials apply to social media
Prohibit deceptive/false claims.
Prohibit false identities/anonymous posts/shills when commenting on company goods/services.
Best Practices: Elements of Social Media Policy
Prohibit illegal use & poor judgment
Require that employee social media use not violate any laws or regulations.
Prohibit behavior that infringes intellectual property rights of others.
Prohibit discriminatory and harassing conduct.
Social Media Policy -- Elements
Restrictions on Sharing of Data/Information
No posting of names, photos, personally
identifiable information of persons outside the Company without permission.
Prohibit disclosure of confidential, proprietary, or trade secret information of the company or of other companies or persons, except for any information concerning employee wages,
benefits, terms and conditions of employment, employment policies, or working conditions.
Best Practices: Elements of Social Media Policy
Reference/incorporate the Company's Electronic Communications Policy
That will automatically graft onto the social media policy prohibitions against illegal discrimination and harassment, disclosure of confidential
information, and a number of other important legal protections for the company
Other Best Practices
Monitor and respond to posts on Company-branded channels and third party social media forums
Multi-disciplinary rapid response team
Follow the relevant third party terms of use
Establish sound terms of use where possible
Address “takedown” requests promptly
Obtain third party and employee consents where appropriate
Questions??
Todd Palmer
Labor & Employment 216-622-8354
tpalmer@calfee.com
Tim Connors
Information Technology & Intellectual Property 216-622-8672
tconnors@calfee.com
