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Social Media & the Workplace

What Do Employers Need to Do to Protect Confidential Information, Prevent Employee Harassment and Obey the Changing Law on Employee Use of Social Media?

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Integrated HR Solutions

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The BASIC Difference…

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Lawrence Donoghue:

Lawrence has been counseling and representing employers and executives on employment and labor law matters for over thirty years. He is a frequent speaker on these topics to business groups and has been featured on television and in newspapers.

Phone: 847-509-9177

Email: Ldonoghue@ldonoghuelaw.com

Website: www.ldonoghuelaw.com

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Social Media and Employment LawWhy Should Employers Be Concerned? In preparation for a recent speech to a group of

health care professionals, I reviewed a talk I gave to the same group five years before. One of the topics was use of computers by employees.

There was no mention in the first speech of Twitter, Google, Facebook or LinkedIn. To the extent they existed then, they were not an area of any concern since the use of and access to such “social media” were limited.

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Social Media and Employment Law Why Should Employers Be Concerned? As more workers use computers, smart phones and notebooks and

as these items are increasingly integrated with the employee’s job duties, the opportunities for mischief or outright malicious harm are everywhere. Unfortunately, the employer is often the one who is hurt or sued what that happens.

Examples: An employee (Brett Favre) sends sexually explicit pictures

repeatedly to a co-worker via a cell phone. Co-worker files lawsuit.

Sales employee for a luxury car dealership posts comments on his Facebook page ridiculing his employer for giving away hot dogs to customers in a promotional event. Customers see these comments, employer fires employee and he files a claim with the federal government (NLRB) which the company must now defend. (Knauz Motors in Illinois)

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Use of Social Media by Employees. The Four Areas of Concern for Employers

This is not legal advice. Every situation needs to be evaluated in light of the facts and the law. Further, this is an area of constant legal flux and can be a minefield for the unwary. Nevertheless, here are the four areas I will address today.

1. Using information from social media in hiring employees.

2. Preventing harassing activities by employees through electronic means.

3. Disciplining employees who use social media to discuss the terms and conditions of employment or who post derogatory information about the business, its owners or managers.

4. Protecting the company’s trade secrets and confidential information both during and after the employment relationship.

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Using Social Media Information in the Employee Selection Process

As a general rule, employers may use any information obtained legally in the hiring decision, provided that the effect of the selection criteria doesn’t discriminate against a protected group.

Employers can look at social media postings for the applicant since they were put there by the applicant and are clearly intended to be in the “public domain.” Postings by friends, comments or information from sources other than the applicant should only be considered in limited circumstances or not at all.

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Using Social Media Information in the Employee Selection Process

Limit your use of the acquired data to those parts that concern the applicant’s qualifications and truthfulness. This is not easy to do considering the volume of information posted by some people, but look for the following: Did the applicant misrepresent herself during the hiring

process? Does she have a criminal background she failed to tell you about? Did the applicant lie about educational attainment or degrees? Was he not forthcoming about his current job or work status? What about job title?

Ignore those portions that relate to marital status, sexual orientation, religion, political affiliations or community activities. If you would not seek the information on an application you may not consider it just because it came from another source.

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Using Social Media Information in the Employee Selection Process

The information you find should only be used as part of the overall hiring decision and not as the determining factor. If you want to contact the applicant to get an explanation of apparent discrepancies then do so. You can even tell the person the source. No one who posts personal information on Facebook or LinkedIn can say it is private and confidential.

This is a new area of the law with very little precedent but I’m satisfied if you stick with these guidelines you’ll comply with applicable laws on employee selection.

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What Can an Employer Do to Prevent Illegal Harassment through Social Media?

I mentioned earlier the case involving Brett Favre. There are many other instances of such lewd and harassing behavior through the use of electronic media. In Favre’s case, he was a member of the New York Jets and was sending photographs of his genitalia by cell phone to a female staff member apparently in an attempt to induce her to enter into a sexual relationship. Clearly these actions would fall within the definition of sexual harassment for which the employer would be liable.

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What Can an Employer Do to Prevent Illegal Harassment through Social Media?

An employer’s obligation is to first and foremost inform ALL employees that sexual harassment is illegal and intolerable. Define what sexual harassment is and encourage people who have been harassed to come forward to report any such behavior.

If you don’t have a policy on workplace harassment , you must prepare one immediately. I mean today.

A current policy must be amended to explain to employees that communication through electronic media is just as intolerable and illegal, even if posted anonymously.

Be sure to include the following examples of unacceptable behavior:• Circulating dirty jokes through email.• Sending lewd photographs a la Favre.• Posting any sexually related materials on a co-worker’s Facebook or other

account.• Persistently seeking dates or sexual favors from a co-worker through text

messages or other communication.The list is endless and is only limited by employees’ imaginations and idle time.

If you have a well drafted policy that all employees are informed of and agree to, that will serve as the company’s first line of defense should illegal activity occur.

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What Can an Employer Do to Prevent Other Illegal Harassment through Social Media?

Please note that harassing behavior via social media is not confined to sexual harassment.

If an employee posts jokes, comments or photographs which are racist, sexist, homophobic or based on any other protected status, that is equally illegal and not to be tolerated.

Make sure your policy reflects this. No exceptions.

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What Can Employers Do to Limit Employees’ Comments about the Company? For years, the only derogatory remarks employers had to

worry about were anonymous postings on the bulletin board in the lunchroom.

The bulletin board is now the PC, laptop, Facebook and cell phone and the lunchroom is the electronic world. What used to be a minor annoyance has the potential to mushroom into lawsuits or investigations of employment practices.

The federal government, notably the National Labor Relations Board, has taken notice of the increase in employees’ use of social media and issued several decisions on the subject, none of which is favorable to employers.

What can an employer do?

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What Can Employers Do to Limit Employees’ Comments about the Company? Employees do not have an unfettered right to

publish or say anything. Remarks that are slanderous, libelous or just plain false are not protected whether they are about the company or its managers.

Employers may still discipline or discharge employees who do such things regardless of the forum for the comments.

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What Can Employers Do to Limit Employees’ Comments about the Company?

However, employees do have a right under the National Labor Relations Act (NLRA) to engage in “protected, concerted activities for the purpose of collective bargaining or for mutual aid or protection.” This law is enforced by the National Labor Relations Board and only applies to private employers. Managers and supervisors are not covered by the NLRA, either. Government and public employees have their own sets of rules established by their states. Familiarize yourself with your state law and be aware that states are likely to base their interpretation of employee free speech rights on the NLRB’s position.

Limiting employees or disciplining them for acts considered “protected, concerted activities” is an unfair labor practice regardless of whether they are members of a bargaining unit.

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What Can Employers Do to Limit Employees’ Comments about the Company?

The NLRB has an army of regulators and lawyers who both investigate and prosecute administratively any employee claims of unfair labor practices, including those that allege limitations on protected, concerted activities.

For years, the NLRB only concerned itself with employees represented by a labor union as the NLRA contemplated. The proliferation of speech issues on social media has drawn the Board into the fray and they spend a good deal of their time and money processing unfair labor practice charges whether employees are unionized or not.

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What Can Employers Do to Limit Employees’ Comments about the Company? What does the NLRB mean by protected, concerted

activities? This means actions engaged in by a group of employees to discuss the terms and conditions of their employment. An employee acting solely on his behalf or posting comments on an individual Facebook page does not qualify. Likewise, comments sent just to non-employees are not protected. But, if you have a group of employees who have set up their own web page to complain about company actions, the comments they make in that forum are protected and the employees may not be disciplined for them.

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What Can Employers Do to Limit Employees’ Comments about the Company?

Employees participating in email discussions are also protected so long as the discussions relate to employment.

The terms or conditions of employment which employees may discuss include pay, benefits, actions by management, discipline or employee terminations, union organizing and working conditions.

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What Can Employers Do to Limit Employees’ Comments about the Company?

The communication discussing these subjects must be among employees for the purposes of furthering their rights and not just a posting by an individual employee on a website.

Regrettably, several recent decisions by the NLRB have concluded that sarcastic and disparaging remarks posted publicly were protected because the gist of the employee’s statements concerned workplace conditions and management practices and were shared with co-workers.

As currently comprised, the NLRB is very, very pro-employee and quick to find that any limitation of employee speech is a violation of the NLRA.

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What Can Employers Do to Limit Employees’ Comments about the Company? Employers need to have a policy that addresses

employee speech. This is not optional. Do it as soon as possible. It will protect your business.

From the outset, the employer must advise employees that it doesn’t intend to limit or coerce them from engaging in open and honest discussions about workplace matters among themselves, regardless of the forum.

Let employees know they can discuss wages, benefits, working conditions or union organizing without any fear of discipline by the employer. They can even talk about how much each other’s salary, performance ratings, special benefits or disciplinary discussions.

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What Can Employers Do to Limit Employees’ Comments about the Company? But, employers need to advise employees that their protected,

concerted activities may not interfere with their work duties. Employees are paid to produce in accordance with the employer’s directives.

Tell the employees that libelous, slanderous or just plain untrue remarks intended to ridicule co-workers, managers or customers do not fall within the definition of protected, concerted activities. Such acts will be cause for discipline, including discharge. Make this part of your policy on employee use of social media and computers.

On a related note, the NLRB has just issued a workplace poster on this subject that virtually every private employer must display by April 30, 2012. If you would like a copy please let me know or you can obtain your own at the NLRB.gov website.

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What about Confidential Information or Trade Secrets? How Can I Force Employees to Protect Them? The short answer to this question is that in the age of the

Internet, ubiquitous workplace computers, Facebook and cell phone cameras, it is virtually impossible to prevent an unhappy but determined employee from stealing or distributing your trade secrets. Sad but true.

There are, however, steps you can take to protect this information both during and after the employment relationship.

The Uniform Trade Secrets Act is applicable throughout the United States and protects an employer’s “trade secrets” from dissemination by employees, both during their employment and indefinitely afterward. Employees must be informed of this law and how it applies to them. This cannot be repeated often enough.

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What about Confidential Information or Trade Secrets? How Can I Force Employees to Protect Them? A “trade secret” is not just something an employer designates

as such. It is a tangible asset the employer purchased or developed that gives it a competitive advantage in the marketplace and which the employer has taken steps to maintain as confidential. The formula for Coca Cola is a trade secret. A list of a company’s customers distributed to all employees on a web site is not.

One of the ways an employer can “take steps” to maintain confidentiality is by having ALL employees sign a comprehensive policy statement in which they acknowledge their obligations while employed and afterwards.

I suggest doing this annually with every employee and immediately at time of hiring along with other employment documents. Every employee must have a signed agreement in the personnel file. No one is exempt.

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What about Confidential Information or Trade Secrets? How Can I Force Employees to Protect Them?

Any time an employee is terminated, whether for cause, economic reasons or pursuant to a workforce reduction, the employer must remind those employees that the obligation to honor the confidentiality pledge continues after employment regardless of the reason for separation.

A severance agreement must also contain a pledge from the former employee that he or she will keep the trade secrets information secure. Always include this provision as well as a forfeiture clause in the event an employee on severance pay breaches it.

Be exceedingly clear to workers that the company will take all steps necessary to protect its confidential trade secrets, including filing lawsuits or referring cases for criminal prosecution.

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What about Confidential Information or Trade Secrets? How Can I Force Employees to Protect Them?

Any such policy or pledge must specify that the commitment extends for an indefinite period of time and to all forms of communication, social media, the Internet, web sites, and emails.

Also, make the employee agree that he or she authorizes the company to investigate any “anonymous” postings and that the employee will cooperate in that investigation.

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What about Confidential Information or Trade Secrets? How Can I Force Employees to Protect Them?

Warn employees of the legal consequences of violating the Trade Secrets Act or their pledges to honor your confidentiality agreement. Be ready to go to court, if necessary, to enforce the employer’s rights to maintain the trade secret from disclosure.

Given the proliferation of means of communications, there is no perfect legal way to protect all information. Work closely with your technical support staff, human resources and your attorneys to protect your business.

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Questions???

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Lawrence Donoghue

Phone: 847-509-9177

Email: Ldonoghue@ldonoghuelaw.com

Website: www.ldonoghuelaw.com

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Contact Information

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