Legalities, Policies and Procedures for Soci Conference... · Social Media & Pre-employment • 22%...

Legalities,Policies andProcedures

for

Social

Networking

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Presented by:

Pamela L. Beach, R.N., J.D.Pamela L. Beach, R.N., J.D.Texas Council Risk Management FundTexas Council Risk Management Fund

with thanks toCara Leahy WhiteCara Leahy White

Taylor, Olson, Adkins, Sralla & Elam, LLP

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IntroductionIntroduction

• What is Social Networking?

• Overview of Laws Impacting SocialNetworking in the Workplace

• Social Media Policy

• Application of Social Networking toSpecific Fact Patterns

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What is Social Networking?What is Social Networking?

The term used to describe the activity ofnetworking via Internet social sites suchas Twitter, Facebook and LinkedIn. Socialnetworking allows for interactionbetween people who share a commoninterest or wish to network and facilitatebuilding or maintaining relationships,whether personal or professional,regardless of geographic differences.

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• Facebook has more than 400 millionactive users, worldwide.

• Average user spends more than 55minutes per day on Facebook.

• The average age of the Facebook user is35.

• Facebook has surpassed Google as theNo. 1 visited U.S. website.

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• In comparison, Twitter has 75 millionusers.

• The average age of a Twitter user isbetween 45 and 54.

• LinkedIn has roughly 55 million memberswho tend to be more professionallyfocused.

Social Networking

And

Employment

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How does Social MediaHow does Social Media

Affect the WorkplaceAffect the Workplace??

Social media can:

• Be used to screen job applicants.

• Be used to monitor employeeconduct.

• Be a workplace distraction foremployees who log on during workhours.

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How does Social MediaHow does Social Media

Affect the WorkplaceAffect the Workplace??

Social media can:

• Be used by an employee to makedisparaging comments about clients,co-workers, or supervisors.

• Be used by an employee to discloseconfidential information about theworkplace.

Social Media &Social Media &PrePre--employmentemployment

• 22% of hiring managers indicate that theyresearch applicants on the Internet.

• Employers may face liability under federal orstate law for using any information learnedfrom social media about an applicant’sprotected class status in a hiring decision.

• Most social media sites will reveal informationregarding an individual’s race, age, disability,religion, sex, etc. 10

Social Media &Social Media &PrePre--employmentemployment

• May be difficult for an employer toprove that he only viewed theinformation on a social networking sitebut did not base the hiring decision onthe information.

• An Employer must determine whetherthe benefits of using social media toscreen applicants outweigh the risks.

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Social Media &Social Media &PrePre--EmploymentEmployment

• An employer can lawfully useinformation relating to an applicant’s

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illegal drug use,

poor work ethic,

poor writing orcommunication skills,

indiscretion regardingprevious employer,

racist or otherdiscriminatorytendencies, and

poor judgmentregarding his or herpublic persona.

Screening ApplicantsScreening Applicants

• An employer should screen applicants ina uniform manner;

• An employer must be consistent,objective and non-discriminatory inselecting subsets of applicants to screen;

• An employer should select a neutralparty to conduct the social mediasearch;

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• The neutral party should filter outprotected class information about theapplicant and report only informationthat may lawfully be considered inmaking a hiring decision;

• An employer should never “friend”applicants to gain access to their non-public social networking profiles;

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• An employer must be able to point tolegitimate, non-discriminatory reasonsfor the hiring decision, withdocumentation to support the decision;

• An employer that is considering makingan employment decision based oninformation found in social media shouldconsult with counsel.

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During EmploymentDuring Employment

Pros:

• Can result inbusinessgeneration orincreasedrecognition;

• Can allow for thecreation of acollegialatmosphere in theworkplace;

Cons:

• An employee mayspend too much timeusing social media atwork;

• An employee maymake an unauthorizeddisclosure regardingconfidentialinformation orpersonnel matters; 16

Social MediaSocial MediaDuring EmploymentDuring Employment

Pros:

• Can be used tocommunicate withemployees.

Cons:

• An employee maydisparage hisemployer, supervisor,co-workers, or clients.

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HypotheticalHypothetical

An employee frequently blogs about hisrecent conversion to Islam. Some of hisblogging occurs at the workplace bothduring and after work-hours. Theemployers has cautioned the employeeagainst blogging at the workplace and theemployee has made an effort to reduce hisblogging.

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•The employer notices a recent post madeduring work-hours so employer disciplinesthe employee.

•Does employee have a Title VII claim?

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AntiAnti--Discrimination LawsDiscrimination Laws

Title VII may protect an employeedisciplined for online activity if theironline activity reveals a protectedcharacteristic.

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AntiAnti--Discrimination LawsDiscrimination Laws

• An employee may be able to state aprima facie case of religiousdiscrimination if he can show that

The employer read his blog;

The blog made the employer aware of hisreligious faith; and

Subsequent to becoming aware of his faith,the employer disciplined or fired him.


Two co-workers become “Facebookfriends.” Co-worker A begins postingflirtatious and sexually suggestivecomments on Co-worker B’s Facebookwall. Co-worker B complains to HumanResources that she is feeling harassed byCo-worker A.

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When asked for details regarding hercomplaint, Co-worker B explains that theharassment is happening online throughFacebook and that no inappropriatebehavior has occurred in the workplace.

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What should Human Resources do?

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Workplace InvestigationsWorkplace Investigations

1. Determine whether the “virtualharassment” occurred during workhours or though the workplacecomputer system.

2. Determine whether the conduct isaffecting the workplace.

3. Determine whether the conduct violatesa workplace policy.

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A supervisor “friends” a subordinateemployee on a social networking site. Thesupervisor learns through the socialnetworking site that one of his employeesis suffering from depression.

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Does the supervisor have an obligation toreport this information to HumanResources?

If so, must Human Resources initiate theinteractive process to determine if theemployee’s depression is impacting hisability to work?

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Social Media and theSocial Media and the

First AmendmentFirst Amendment

• A public employee has free speech rightsthat a private employee does not have.

• Whenever a public employee commentsabout his employer’s activities, theemployee may be protected againstdisciplinary action under the FirstAmendment.

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Social Media and theSocial Media and theFirst AmendmentFirst Amendment

• In 2006, the Supreme Court held that thecommunications of public employees areprotected by the First Amendment only ifthe employee is speaking as a privatecitizen about a matter of public concern.

• When determining whether to discipline anemployee because of his posts, tweets, orblog, first ask whether the employee isspeaking as a private citizen or agovernment employee.

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• A public employee is not protected fromdiscipline if the speech is part of theemployee’s official duties as a publicemployee.

• If a Court finds that a public employee isspeaking as a private citizen on a matterof public concern, the employee’sactions are only protected if the public’sinterests outweigh the employer’s.

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• Instead of disciplining an employee forcontent they have posted on theInternet because it references theemployer, consider relying on reasonsfor discipline that do not trigger FirstAmendment protections, such as theposting’s effect on the workplace or theemployee’s performance.


A state prosecutor is assigned toinvestigate a police shooting. Heconcludes that the shooting was notjustified. Shortly after this conclusion, theprosecutor is removed from the case. Theprosecutor subsequently drafts and e-mails a memo expressing his concernabout the implications of being removedfrom the investigation.

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Three years later, the prosecutor makes apublic records request for the e-mail andthe attached memo. The documents arereleased to the prosecutor, who posts thememo on a blog. He also posts e-mailsrelating to his removal from theinvestigation, along with statementsquestioning the truthfulness of statementsmade by his superiors.

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The prosecutor was suspended for thirtydays without pay. The suspension wasbased in part on the public posting andupon other derisive and offensivecomments he posted about his superiors.The prosecutor brings suit allegingretaliation for exercising his FirstAmendment right to free expression.

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Does the prosecutor prevail?

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Metropolis issues pagers to the City’spolice SWAT team. The City contracts witha third-party vendor to provide textmessaging pager service. The Lieutenantof the Metropolis Police Departmentimplements an informal practice ofallowing officers to use the pagers to sendpersonal messages if the officer pays forany “overage” usage.

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The City begins to audit the text messages todetermine if overage charges are due to work-related or personal text messages. To facilitatethe audit, the third-party vendor sends the Citytranscripts of the text massages. The City learnsthat Sergeant Smith sent a large number ofpersonal messages, some of which are sexually

explicit, using the City-issued pager.

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Sergeant Smith sues the City and thevendor.

Does the Sergeant prevail against the City?

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What if the City had a written policy oncomputer, Internet, and e-mail usage thatlimited usage to business purposes, andinformed employees that they should haveno expectation of privacy, and warnedemployees that their usage would bemonitored?

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Does the Sergeant prevail against thevendor?

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Stored Communications ActStored Communications Act

• Creates a criminal offense for whoever“intentionally accesses withoutauthorization a facility through which anelectronic communication service isprovided” or “intentionally exceeds anauthorization to access that facility” andby doing so “obtains, alters, or preventsauthorized access to a wire or electroniccommunication”.

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Stored Communications ActStored Communications Act

• Provides a private cause of action for“any… other person aggrieved” by aviolation of the Act and allows a court toaward equitable or declaratory relief,attorney’s fees, and actual and punitivedamages.

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Open GovernmentOpen Government

• Under the Public Information Act, PublicRecords include:

All data collected, assembled, ormaintained by a governmental body inconnection with the transaction of officialbusiness;

All data collected, assembled, ormaintained by the governmental body thatthe body owns or has a right of access.

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• The Public Information Act covers thefollowing medium:

recorded information, including electronic,paper, video tape;

includes email.

• No Attorney General opinion on socialmedia, yet but “public information” is tobe liberally construed in favor ofdisclosure.

• Texas Health & Safety Code, Section534.009

The Board of Directors shall adopt rules forthe holding of regular and special meetings.

Board meetings are open to the public tothe extent required by and in accordancewith the open meetings law.

The board of trustees shall keep a record ofits proceedings in accordance with the openmeetings law.

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Texas Open Meetings ActTexas Open Meetings Act

• Every meeting of a governmental body is opento the public to facilitate the public’s right toobserve the government in action;

• Board of trustees must keep minutes or taperecordings of its meetings;

• A quorum must be present for a meeting tobegin;

• If officials gather in numbers of less than aquorum with the intent of circumventing theAct, criminal penalties may be imposed.

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Open Government andOpen Government andSocial MediaSocial Media

• Information posted on social media maybe regarded as public information if:

Two Board Members with mutual “friends”on Facebook leave comments about Boardbusiness to the same friend;

Employees post a negative blog about anissues affecting the Center, or about afellow Board member or employee;

Emails or text messages between Boardmembers or between employees discussingCenter business. 47

Records RetentionRecords Retention

• A Center must turn over records in aformat requested by the requestor orrequest withholding records;

• It may be a challenge to maintainrecords made by an employee on theirsocial networking site;

• No current established policy for thepreservation or destruction of blogs,comments, posts, or tweets.

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Social Media and the FLSA

The Fair Standards Labor Act mandatesovertime pay for non-exempt employeesworking over 40 hours a week.

Hypothetical A

An employee has been hired to set up andmonitor the center’s Facebook page. Theposition is non-exempt. If the employee logson in the evenings at home to check the page,does that count as “time worked” under theFLSA.

Hypothetical B

An non-exempt employee maintains her ownFacebook page. In the evenings, at home, sheblogs about how wonderful it is to work at thecenter, giving basically the same marketingpitch as the center has on its own webpage.Does this count as “time worked” under theFLSA?

Before you Tweet,Before you Tweet,Post or Blog…Post or Blog…

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• Am I revealing any potentiallyembarrassing private information?

• Am I discussing official Center business?

• By posting this information am Iimplicating the Open Meetings Act?

• Is this information subject to the PublicInformation Act?

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• What will current or future employersthink about what I post?

• Who will be able to view the informationI am posting?

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Social Media Work PolicySocial Media Work Policy

• Clearly express to employees that, whenusing a workplace computer system, theemployee has no expectation of privacy.

• Prohibit conduct that creates a conflict ofinterest or otherwise harms Center’sinterests.

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• Prohibit employees from includingactivities that occur at the employer’sfacilities or are sponsored by theemployer.

• Prohibit employees from postingderogatory, defamatory, orinflammatory content about co-workersor clients.

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• Prohibit employees from engaging inillegal or unlawful activities – at work oronline.

• Inform employees to protect other’sPrivacy Rights.

• Inform employees that any conductthat would be grounds for dismissal ifperformed at work will be grounds fordismissal if performed online.

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• Request that employees keep Centerlogos or trademarks off their blogs andprofiles and not mention the Centerunless for business purposes.

• Instruct employees to not post or blogduring business hours unless forbusiness purposes.

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• Request that employees bring work-related complaints to human resourcesbefore blogging or posting about them.

• Require all employees with personalblogs that identify the Center to indicatea disclaimer that the views expressed onthe blog are those of the individual andnot the employer.

Social Networking

Protected Health Information

And

Clients

Social Networking and PHI

• All current laws and regulations about PHIpertain to social networking sites

• HIPAA has been amended to requireencryption of all PHI sent over the internet

• The center’s current policies and proceduresabout PHI and relationships with clients andabuse and neglect are applicable to socialnetworking activity

Hypothetical “Be My Friend”

An employee has a Facebook account. Aperson the employee knows to be a client asksto be there friend. What does the employeesay?

Be My Friend

Center policy, state regulations and licensingregulations prohibit staff and licensedprofessionals from being a friend to or havinga dual relationship with any center client.

Hypothetical “Be My Friend”

An employee has a Facebook account. Aperson asks to be the employee’s friend.Later, the employee learns that the person isa client of the center. What does theemployee do?

Be My Friend

Center policy, state regulations and licensingregulations prohibit staff and licensedprofessionals from being a friend to or havinga dual relationship with any center client.Once the employee knows the person is aclient, the relationship must end.

Photographs of Clients

An employee who works with DD clients,takes pictures of clients, without theirpermission and puts them on her Facebooksite and says “These are some of thewonderful people I work with.”

Photographs of Clients

Center policy prohibits taking pictures ofclients without their permission. This appliesto taking pictures of clients without theirpermission and putting them on Facebook.

Hypothetical

The center has a Facebook page open to thepublic. An individual logs on to chat and talksabout symptoms of mental illness, stating thatshe has been diagnosed with bipolar disorder.The center employee responds back abouttreatment programs that are available at thecenter and criteria for admission. Problem?

Social Networking and PHI

When in doubt, ask, if this occurred in theparking lot, in the mall, at a bar or in a privatehome, what policy, laws or regulations wouldapply?

Questions?

Date post:	24-Aug-2020
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