SOCIAL MEDIA PRESENTATION – EMPLOYMENT AND HR

IMPLICATIONS(September 22, 2011)

Shannon M. McDonough775 Prairie Center Drive, Suite 400Eden Prairie, MN 55344952-995-9500

shannon.mcdonough@fmjlaw.com

Fafinski Mark & Johnson, P. A.© 2011

I. AGENDA

1. Overview of social media statistics from an employment context.

2. Review current trends in caselaw regarding social media in the employment context.

3. Address potential risks to employers and employees concerning improper use of social media.

4. Discuss tips for crafting effective social media policies.

II. Overview

June 2009 Career Builders Survey*o 45% of employers reported they use social

media to screen potential employeeso 18% found content on the sites that

encouraged them to hire the candidateo 35% found content on the sites that caused

them not to hire the candidate

*Source: http://www.careerbuilder.com/Article/CB-1337-Interview-Tips-More-Employers-Screening-Candidates-via-Social-Networking-Sites/

II. Overview (Cont’d)

53% of employers research potential job candidates on social networks*o Over 1/3 said that a social networking profile

proved a candidate lied about his/her qualifications on CV

o 13% claimed a candidate had made discriminatory comments on his/her Facebook page

o 9% made provocative comments or posted inappropriate photographs

*The Growth of Social Media: Available at http://www.searchenginejournal.com/wp-content/uploads/2011/08/20110824SocialMediaBlack.pdf

II. Overview (Cont’d)

Practical concerns raised as a result of employees spending time and/or posting material on these siteso Decline in employee productivityo Negative publicity to the Companyo Disclosure of Company confidential

informationo Potential legal exposure to employero Potential disciplinary action/termination of

employee

II. Overview (Cont’d)

Employees, including celebrities getting disciplined and fired for social media commentso Ozzie Guillen – Manager of Chicago White Sox

suspended 2 games for Twitter messages sent moments after ejection

o Gilbert Gottfried (the voice for the Aflac duck) fired by Aflac in March 2011 for tweeting more than a dozen jokes making fun of earthquake and tsunami victims in Japan

o Reporter fired for tweeting raunchy remark about Bindi Irwin

III. Current Trends in the Law

Very new and evolving body of law Most heavily focused on the ability of an

employer to discipline/terminate an employee based upon his or her use of social media outlets

III. Current Trends in the Law (Cont’d)

City of Ontario, Cal. v. Quon, 130 S. Ct. 2619 (2010)o Police department had a Computer Usage,

Internet and Email Policy o Reserving right to monitor all network activityo No expectation of privacyo Did not apply, on its face, to text messageso (But City made it clear text messages would be

treated the same as emails)

III. Current Trends in the Law (Cont’d)

o Officers going over their monthly limit of text messages on city-issued phones

o City wanted to determine whether texts were work-related

o City did not review texts that occurred outside of work hours

o Quon sent mostly personal texts during work hours, several sexually explicit

o Disciplined

III. Current Trends in the Law (Cont’d)

o Quon brought § 1983 claim against City and police department, alleging review of text messages violated Fourth Amendment

o US Supreme Court found the search did not violate Quon’s Fourth Amendment rights

o Search was motivated by a legitimate work-related purpose

o Not excessive in scope

III. Current Trends in the Law (Cont’d)

General Rule: At-Will Employmento Employer can terminate an employee for any

reason as long as it’s not for a discriminatory or otherwise illegal purpose

Exceptions o Including NLRA implications

o Could apply to union and non-union shops

III. Current Trends in the Law (Cont’d)

Employers – NLRA issueso National Labor Relations Act (“NLRA”)

guarantees employees “the right to self-organization, to form, join or assist organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. § 157.

III. Current Trends in the Law (Cont’d)

o It is considered an unfair labor practice for an employer: “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed” to form, join or assist a labor union. 29 U.S.C. § 158(a)(1).

III. Current Trends in the Law (Cont’d)

American Medical Response of Connecticut, Case No. 34-CA-12576 (October 5, 2010)o Case involved employee who was disciplined

and eventually discharged for violating the company’s blogging and internet policies

o Barred employees from depicting the company “in any way” on Facebook

o Prohibited employees from making disparaging remarks when discussing the company or the employee’s superiors, co-workers or competitors

III. Current Trends in the Law (Cont’d)

o Employee referred to her supervisor as a “scumbag,” used other vulgarities and posted “love how the company allows a 17 to become a supervisor” (which purportedly refers to the Co.’s code for a psychiatric patient)

o First case in which the NLRB intervened on behalf of employee for criticizing her boss on a social networking site

o Company maintained not protected “concerted activity”

III. Current Trends in the Law (Cont’d)

February 8, 2011, NLRB announced it reached a settlement agreement with the employero Employer agreed to revise its overly-broad rules to

ensure:o they do not improperly restrict employees from

discussing their wages, hours and working conditions

o they would not discipline or discharge employees for such discussions

o Private settlement agreement reached w/ employee

III. Current Trends in the Law (Cont’d)

Hispanics United of Buffalo, Inc. (Case No. 3-CS-27872)o Complaint issued May 20, 2011o NLRB filed charge against non-profit social

services agency for firing 5 employees for complaining after hours on Facebook about their jobs and working conditions

o First ever ruling in social media cases o Prior NLRB cases settled confidentiallyo First to go to a hearing and reach a decision

III. Current Trends in the Law (Cont’d)

o ALJ held the employer violated the NLRA for the terminations

o Found discussion was protected concerted activity pursuant to Section 7 of NLRA

o Ordered to reinstate the employees with back pay

o Will likely be appealed

III. Current Trends in the Law (Cont’d)

Lee Enterprises, Inc. d/b/a Arizona Daily Star, Case No. 28-CA-23267o No social media policyo Employee tweeted sarcastic remark about Daily Star’s

editorso Employee instructed not to use Twitter o Employee continued Tweeting

o “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.”

o “You stay homicidal Tucson. See Star Net for the bloody deets.”

o Warned and fired

III. Current Trends in the Law (Cont’d)

NLRB Office of the General Counsel issued an Advice Memorandum finding the discharge did not involve protected concerted activityo Did not related to terms and conditions of his

employmento Did not seek to involve other employees in

issues related to employment

IV. Legal Risks and Implications

1) Tort Liabilityo Employer potentially could be liable for torts

committed by employeeso Examples:

o defamation (of customers, competitors, other employees)

o invasion of privacy (e.g., from posting or publishing private information about others)

o negligence

IV. Legal Risks and Implications(Cont’d)

2) Other Employer Liability Harassment or discrimination claims

o Social networking sites often provide personal information about a candidate – e.g., age, race, marital status, religious affiliation, political views, etc.

o This information may be “protected” information that an employer cannot ask about in the hiring process or use as a factor in hiring decision

IV. Legal Risks and Implications (Cont’d)

o Options to avoid liability:o Avoid screening job candidates on these

siteso Or, if you are going to do it anyway, have

someone other than the decision-maker screen these sites to filter out information the decision-maker is not supposed to have in making a hiring decision

IV. Legal Risks and Implications (Cont’d)

Fair Credit Reporting ActRetaliation claims – based upon adverse

employment actions

IV. Legal Risks and Implications (Cont’d)

Lawful, Off-Duty Activitieso Minn. Stat. § 181.938

o An “employer may not refuse to hire a job applicant or discipline or discharge an employee because the applicant or employee engages in… the use or enjoyment of lawful consumable products, if the use or enjoyment takes place off the premises… during nonworking hours.”

o Includes alcohol and nonalcoholic beverages and tobacco

IV. Legal Risks and Implications (Cont’d)

Invasion of PrivacyNLRA union protected activity (discussed

above)Federal Stored Communications ActComputer Fraud and Abuse Act

IV. Legal Risks and Implications (Cont’d)

3) Employee Liabilityo Potential disclosure of trade secrets or

confidential/propriety informationo Defamationo Discipline/dischargeo Use of social networking information

against employee in litigation

V. Social Media Policies

Should you have one?

V. Social Media Policies (Cont’d)

Provisions to include

1) No expectation of privacyo Employer right to monitor/audit computer

activityo Include text messages (for company

distributed phones)o Right to disclose to law enforcement

V. Social Media Policies (Cont’d)

2) Limitations on useo Limitation of personal useo Prohibit disclosure of confidential and

proprietary information (other employees, clients, company)

o Making statement on behalf of companyo Making derogatory comments about

company, employees, clients, etc. (be careful of NLRA issues)

V. Social Media Policies (Cont’d)

3) Consider NLRA issues

4) Reference other policies (such as confidentiality provisions)

5) Obtain an acknowledgement of receipt

6) Consider employee training

VI. Conclusion

As employees, be careful of what you post on social networking sites

As employers:o Stay current on social media legal decisionso Consider implementing social media policyo Consistent enforcement of policies

VII. Questions?

Social Media Presentation

Thank you!