SOCIAL MEDIA AND THE INSURANCE INDUSTRY:INSURANCE … · Bricker & Eckler LLP 100 South Third...

SOCIAL MEDIA AND THE INSURANCE INDUSTRY:INSURANCE INDUSTRY:

WHAT YOU NEED TO KNOW

Employment IssuesOctober 21, 2010

Betsy A. Swift

[email protected]@614.227.8850

Bricker & Eckler LLP100 South Third StreetColumbus OH 43215Columbus, OH 43215

Disclaimer

This presentation does not pconstitute legal advice, and you should consult with a lawyer beforeshould consult with a lawyer before relying on any statement in this presentationpresentation.

© Bricker & Eckler 2

Video Clip

www.youtube.com/watch?v=lFZ0z5Fm-Ng


Social Media

• Social Media is a “conversation” and your• Social Media is a conversation and your organization may or may not be taking part but certainly some of your employees arebut certainly some of your employees are taking partT f i l f t t• Transforming people from content consumers into content producers

• aka Electronic Exhibitionism and Voyeurism


Questions for Audience

• How many have a social media policy?H i th “ ”?• How many in the “process”?

• How many permit “incidental” or “limited” personal use of company equipment?

• How many have a policy that says one y p y ything but you don’t really know what happens in practice?pp p


Social Media Policy

• Company should determine its philosophy towards social media

• Why? Some employees lack “common sense”

• Your policy must fit your organization and must be coordinated with your other

l t d lirelated polices


Policy Issues to Consider

• Complete social networking ban during working time on company equipmentand personal equipment? (computer, cell phones, Blackberrys, etc.)

• If yes – policy also needs to address non-working time social networking issues.



Variations on complete ban• Allow business related social networking on• Allow business related social networking on

company equipmentWhat positions?What positions?

purposes?sites?restrictions?

• If yes – policy needs to address non-working time social networking issues.



• Allow personal social networking on– company equipment during employee’s

non-working times (breaks, lunch) during work daywork day.

– company equipment during employee’s working timeworking time.

– personal equipment during non-working times (breaks lunch etc ) during work daytimes (breaks, lunch, etc.) during work day.

– personal equipment during employee’s working time


working time.

The Current Employee

• If allow personal use, policy should note any time limitations– note any time limitations

– instruct employees that activity cannot interfere with job duties/company’sinterfere with job duties/company’s computer system

li bilit f th li i– applicability of other policies– note company’s right to monitor

• Block access to certain social networking sites


sites.

Social Networking and theEmployment LifecycleEmployment Lifecycle

• Focuses on the ways in which social media i ht i t b i fmight impact your business from an

employment perspective:– The Potential Employee– The Former Employeep y– The Current Employee


Pre-employment Issues

• 55% of respondents to a 2009 Career Builders survey use social media in the recruiting process (could be posting jobs or seeking candidate info)

• Time magazine reported 70% of US HR g pofficers have not hired a candidate because of the applicant’s online social ppnetworking info



• Pay Dirt: Online “blabbers” vs. resume, application, or job interview info (Exhibitionism)

• “I can’t resist” – quick, inexpensive resource that might be significant to hiring g g gdecision (e.g., prior job terminations, illegal drug use, examples of poor judgment, etc.) g p p j g )(Voyeurism)



Risks:• Becoming “pregnant” with information

unlawful to use in making a hiring decision (e.g., religious beliefs, medical history, prior workers’ compensation claims, etc.).

• If legal challenge, difficult task of establishing use of legitimate vs. impermissible factors in making decision not to hire candidate.



Consider this written policy/process:– which position(s) can perform searches – prohibit hiring managers from searching– ID social media sites to be searched

(public only)d t bt i ’ th ’– do not obtain user’s or another person’s password to obtain access to non public data (risks invasion of privacy claim;data (risks invasion of privacy claim; criminal and civil violation of Stored Communications Act)


)


– ID the type of information to be reported and not reported by the researcher to the decision-makers

– train and segregate searches from decision-makers

– document and maintain informationprovided to the decision-makers.provided to the decision makers.


The Former Employee

• LinkedIn - opportunity for “recommendations” by supervisors (and non-supervisors).

• Does posting violate existing reference policy?p y

• Inconsistent Company positionsHR limited info vs supervisor’sHR - limited info vs. supervisor s “reference”



• Majority of the practical headaches/potential legal pitfalls involve current employeeslegal pitfalls involve current employees– employees posting lewd pictures of

themselvesthemselves – disparaging the company online – harassing a co-worker – posting confidential information p g– disciplinary actions by employers for

postings


postings

Policy considerations

Identify conduct that is strictly prohibited, whether on or off dutywhether on or off duty

• Even with a complete ban during employees’ working time and from company equipmentworking time and from company equipment, still risks

• Off-duty social networking activity byOff duty social networking activity by employees using their own technology

• Policy should state which prohibitions apply to• Policy should state which prohibitions apply to both on and off-duty social networking activities


activities


• Determine company’s obligations to supervise employees and their activitysupervise employees and their activity under various state and federal laws and regulations and contractual agreementsregulations and contractual agreements.

• Unauthorized disclosures of your business’ t ’ fid ti l i tor customers’ confidential, proprietary or

trade secret information.• Posting of defamatory information about

your business or your employees.



• Prohibiting the posting of pictures of the inside of your company (e.g. hospital’s operating room’s grease board, trashed trash can, etc.).vs.

• Work related baby shower pictureso e ated baby s o e p ctu es



• Postings about your customers, or clients or their products, executives, or services.

• Violation of your other policies (discrimination, harassment, etc.).

• Using your company logo/protected marks.



• Using your company’s e-mail address to register for social media sites.

S ki i b h lf f• Speaking or posting on behalf of your company without express authorization.

• Becoming “friends” with non-supervisory employees (pressure to accept supervisor asemployees (pressure to accept supervisor as a friend? Friend then becomes supervisor).



Identify affirmative obligations for employee use of social mediaemployee use of social media

• Require use of disclaimers regarding the expression of personal views whereexpression of personal views where employer implicated.

• Employers’ policies apply to social media communications.

• Approved company “bloggers” should be provided with protocols.



Be cautious about prohibiting too much• Various legal limitations on employer’s ability

to prohibit certain employee activity • Policy may not include overly broad

prohibitions • Ex., various non-discrimination and

whistleblower laws prohibit employers from retaliating against employees who report or otherwise engage in protected activity


National Labor Relations Act

• Cannot discriminate against non supervisory employees who engage in “protected concertedemployees who engage in protected concerted activity”– 2 or more employees acting together (even a

speaker and a listener) to change the terms and conditions of their employment.Includes discussions of wages benefits dress– Includes discussions of wages, benefits, dress code, assignments, and other work responsibilities.p

– Does not include “mere griping” or employee’s activity for purely personal interest.


State Laws to Consider

• Limitations on employer ability to terminate employees for lawful activities outside ofemployees for lawful activities outside of work (e.g., California, Colorado, Montana, New York North Dakota)New York, North Dakota).

• Protections for employee political• Protections for employee political speech/activity (e.g., Connecticut, District of Columbia Louisiana New York Southof Columbia, Louisiana, New York, South Carolina, Washington).


Independent Agents

• Less control over agents than employees.

• Agents don’t use company computer t th t b it dsystems that can be monitored.

Agents are generally not required to follow• Agents are generally not required to follow company policies unrelated to processing, sales or underwriting of policiessales or underwriting of policies.


Independent Agents

• Recommendations for inclusion in Agent Agreement:Agreement:– Include requirement that they comply with

social media policy (or relevant elements)social media policy (or relevant elements).– Establish protocols for use of company logos

and materialsand materials.– Require approval of any promotional material

using company name or products.g p y p– Require disclosure of affiliation and disclaimer

regarding personal opinion.


Invasion of Privacy and Stored Communications Act ClaimsStored Communications Act Claims

Pietrylo v. Hillstone’s Restaurant Group dba y pHouston’s, 2008 U.S. Dist. LEXIS 108834(D.N.J. 2009)( )

• Ee created restricted MySpace group for employees “to vent about" companyemployees to vent about company

• Hostess gave her password to manager.Different manager “asks” hostess for p d• Different manager “asks” hostess for pwd.

• 2 employees fired for postings.


Houston’s Case

Claim #1: Invasion of Privacy• Jury finds in favor of Houston’s–no y

reasonable expectation of privacy in password protected BUT on Internet info p pwith large group of employees with access.


Houston’s Case

Claim #2: Stored Communications Act violation• SCA prohibits intentional access of stored• SCA prohibits intentional access of stored

communications without authorization or in excess of authorization.of authorization.

• Although hostess gave authorization to manager by providing password, jury found it was y p g p , j ycoerced/provided under pressure.

• Judgment against Houston’s as to SCA claim. • Civil: back wages/punitive damages. • Criminal: fine, 1-10 years.


, y

Hostile Work Environment Claims

Guardian Civic League v. Philadelphia Police Dept. (filed E D Pa July 15 2009) -- pending(filed E.D. Pa. July 15, 2009) pending

• Class action alleges police department created a racially hostile work environment by allowingracially hostile work environment by allowing white police officers to operate a racist website and to post racially offensive comments, on and off duty.

• Police department managers allegedly ignored complaints about the website.


Defamation Claims

Blakey v. Continental Airlines, Inc. (D. N.J. 1997), 1997 U S Dist LEXIS 220681997 U.S. Dist. LEXIS 22068

• Employee posts untrue statement about Blakey having herpes on employer’s electronic bulletin g p p yboards.

• Blakey sues for defamation.• Continental prevails - Employee not acting within

scope of job duties when posting• Recommendation: Employers should set• Recommendation: Employers should set

standards for and monitor bulletin board postings (electronic included).


( )

Conclusion

• Your social media policy and practices will need to be reviewed and evaluatedneed to be reviewed and evaluated regularly.

• Guidance from the courts and administrative agencies lags behind the pace of the technology.Pl t d l li d t t d i it• Plan to develop a policy and test drive it with a group of employees and management before releasing it to yourmanagement before releasing it to your entire company.

Questions


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