© 2012 Winston & Strawn LLP · 2012. 4. 19. · tinaa@#rethinking I think we are all tired of your nonsense. You are a liar and can consider yourself fired. (No, I ’ m not kidding.)

© 2012 Winston & Strawn LLP

New Media in the Workplace: The Interaction Between Social Networking Sites

and Employment DecisionsBrought to you by Winston & Strawn’s Labor & Employment Practice Group

© 2012 Winston & Strawn LLP 3

Today’s Presenters

Anna Segobia MastersLabor & Employment

Los Angeles

[email protected]

Danielle GersonLabor & Employment

Los Angeles

[email protected]


Today’s Goals

Know the risks of using social media to gain information about employees and applicants

“Know the turf if you’re going to surf”

Know the limits on managing employees’ social media communications about the company, products, and other employees

Know the key components of a social media policy and best practices for managing social media issues

Know the emerging and unique social media liabilities: e-harassment, e-discrimination, e-security, and the “duty to monitor” Disclosure of confidential/proprietary information, copyright/trademark

infringements


Social Media Explosion


Statistics

Over 2 billion active internet users (as of January 2012) 4 out of 5 internet users visit social networks and blogs

80% of companies use social media for recruitment (as of July 2011)

91% of hiring professionals say they scan social networking sites to screen candidates – Reppler Survey, 2011

Over 845 million active Facebook users (as of February 2012) About 483 million daily active users

People spend over 700 billion minutes per month on Facebook –Facebook website, September 26, 2011

Rise in sharing – creation of a sharing culture −Open Leadership, Charlene Li


Now you know this . . .


Then there is this…Do you have an obligation to investigate pre-hire?

Awesome!!! You are totally nuts!!! I can't believe Jennie got this on her cell. HA HA HA HA HA. Did he hurt your FIST?

April 16, 2009 at 7:18am - Report

What were you smoking? You have got to call me with this story, bro.

April 16, 2009 at 7:18am - Report


Do you even want to know…?


Now you see this . . .

Grant Michelsay says It was great smoking pot with you this weekend Uncle Evan.3 hours ago * Comment * Like

Amy Hicks says it’s time for bed. 5am doesn’t really like me much … and the feeling is mutual!2 hours ago * Comment * Like

CREDIBLE???


Expanding reliance on social media for employee information

» Asking for passwords? » Hiring social media investigators? » Using fake identity to “friend” or gain

unauthorized access to social media?

» Routinely surfing re applicants? » Access social media as part of

investigations?

» Monitoring company sites, blogs, and intranets?


Topic 1:Using Social Media To Gain Information

About Applicants & Employees


Laws That Limit an Employer’s Use of Social Media For Employment Decisions

Traditional Rules Apply Privacy

Defamation and Other Torts Title VII, state EEO laws, ADA, ADEA, GINA and comparable state GINA laws

“Classic” protected status categories

Stored Communications Act and similar state laws

Growing state laws protecting employee right of expression Examples: Cal. Lab. Code §§ 232, 232.5 and N.Y. Lab. Law § 201-d

“No password” laws


Laws That Limit Employer’s Use of Social Media For Employment Decisions

National Labor Relations Act - signed into law in 1935 by President Franklin D. Roosevelt

• Epitomizes how traditional laws play into the issue of social media

• Two key provisions have been applied:

•The right of employees to engage in concerted activity and union-organizing

•The right of employees to engage in other protected activity such as disclosing and discussing wages and working conditions

AND, ONE OF THE MOST SURPRISING SOURCES OF EMPLOYER RESTRICTIONS?


Stored Communications Act

What is it? Part of the Electronic Communications Privacy Act (18 U.S.C.

§§ 2701 to 2712) Generally prohibits knowing and intentional unauthorized

access to the contents of communications while in electronic storage

Why is it important? Social Media claims often involve a claim under the SCA


Stored Communications ActCases of Interest

Pietrylo v. Hillstone Rest. Group, No. 06-5754, 2009 WL 3128420 (D.N.J. Sept. 25, 2009).

Managers’ unauthorized access to an employee’s invitation-only MySpace chat group on which employees posted complaints about their workplace violated the SCA.

Van Alstyne v. Elec. Scriptorium, Ltd., 560 F.3d 199 (4th Cir. 2009).

Parties may recover punitive damages and attorneys’ fees for violations of the SCA without showing proof of actual damages.

Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 2008), rev’d on other grounds, 130 S. Ct. 2619 (2010).

Arch Wireless, the service provider, violated the SCA when it disclosed sexually explicit text messages sent by police officers on city-issued pagers to the police department.


What is the NLRA?

National Labor Relations Act Protects associational rights of union AND non-union employees

"Employees shall have the right to self-organization, to form, join, or assist labor 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, and shall also have the right to refrain from any or all such activities . . . ." NLRA Section 7

“It shall be an unfair labor practice for an employer . . to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.” NLRA Section 8


Claims under the NLRA

Who enforces the NLRA rights? National Labor Relations Board

Independent federal agency vested with the power to safeguard employees’ rights to organize

Prevents and remedies unfair labor practices committed by private sector employers and unions

Very active in social media issues: “Recent developments in the Office of the General Counsel have

presented emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings . . . .” NLRB August 2011

“[T]hese issues continue to be a “hot topic” among practitioners, human resource professionals, the media, and the public.” NLRB January 2012


Protected Concerted Activity?

The legal definition is not easy to apply to social media The activity must be “engaged in with or on the authority of

other employees, and not solely by and on behalf of the employee himself.”

Consider both the disruption to workplace discipline and the alleged disparagement of the employer’s products and services


Some Examples

Protected Concerted Activity Seeks to induce group action

Collections agency employee posted a Facebook status update with an expletive complaining that a supervisor had reassigned her without good cause. Other employees posted expressions of support, included their own criticism of the employer, and even discussed a possible class action against the employer.

Grows out of prior discussion about terms and conditions of employment Employee at popcorn packaging facility posted critical comments about her employer on

Facebook in an ongoing conversation about the terms and conditions of employment.

NOT Protected Concerted Activity “Personal gripes”

Bartender complained on Facebook that he had not received a raise in 5 years and that he was required to do waitress work without tips. He did not discuss his posting with any other employees and no co-workers responded to his posting.

Wal-Mart employee directed rants about the company and his assistant manager to his Facebook friends who were co-workers.


What’s Your Password?

» What’s going on?• Asking for passwords?

» What’s the big deal? • If an employer retains or continues to access information beyond the hiring

process, it could be engaging in activity that violates the Stored Communications Act

• May open the door to discrimination claims/claims under the National Labor Relations Act

» Action being taken• On March 23, 2012, Facebook vowed to end the practice either by

engaging policymakers, or where appropriate, initiating legal action

• On March 26, 2012, two senators called for a federal investigation • On March 28, 2012, two members of the House began drafting legislation • On April 8, 2012, Maryland became the first state to pass legislation

banning this practice by employers

• On April 13, 2012, a New York state senator introduced a bill that aims to bar this practice


Miscellaneous Claims

Privacy rights usually not an issue Moreno v. Hanford Sentinel, Inc., 172 Cal. App. 4th 1125 (Cal. Ct. App. 2009)

(no cause of action for invasion of privacy where information was posted on a MySpace page).

Brown-Criscuolo v. Wolfe, 601 F. Supp. 2d 441, 449-50 (D. Conn. 2009) (denying a motion for summary judgment for an invasion of privacy claim where a school superintendent accessed a principal’s work emails without permission).

Protected speech/activities are still a concern Ranck v. Rundle, No. 08-22235-civ, 2009 WL 1684645 (S.D. Fla. June 16,

2009) (recognizing that a post to a blog could be an appropriate exercise of First Amendment rights).

Magna Int’l, Inc., 2001 WL 1603861 (NLRB Div. Judges 2001) (violation of NLRA where employer’s comment about a picture posted to a union website suggested that management was “keeping track of union activities”).


Miscellaneous Claims contd.

Regulating Lawful Off-Duty Conduct Competing considerations:

On the one hand… Many state statutes protect lawful

off-duty conduct; examples include:» Colo. Rev. Stat. § 24-34-402.5» N.Y. Lab. Law § 201-d

Recent NLRB decisions indicate that Facebook/social networking sites may be viewed no differently than in-person conversations

On the other hand… What does this say about his

common sense? What impact does this have on your relationship with the public? Does it make a difference if this employee is your best sales person? What if he has “friended” your best clients?


Topic 2:Regulating Employee Use of Social Media


The disgruntled employee

KNorris86: CPk black button up policy is the lamest jfj29 ever!!! Not the most professional thing ever!!! Nice job, management jerks.


Disclosing confidential or disparaging information

ttl1: What a year. We are down on shunts. How about you guys? Jan. 11, 2009, 4:15pm

amgnseller: No kidding. I will be lucky 2 make quota R U going to make it? Whatz your number? Jan. 11, 2009, 16:44

Medical Sales Professionals SBlogFOR THOSE OF US IN THE BUSINESS OF SELLING

ttl1: 2.2M. That's 10% to me but only b/c they bumped me to NW Territory. Jan. 11, 2009, 4:15pm


Disclosing a trade secret?

What is the best way to resolve internal "SYN" packets on a Win network? We have mixture of Catalyst 4003s and 3424 switches.

Product manual says you should convert all to 3424 but don't believe it. Our "best practice" is to assume you are under DOS attack and the IP address is fake. Here is a link to the code I use to upbraid the connection and work around the fake address:

http://asdjasdjfjkasdjf

Just be sure to customize the sample code as follows . . .


Your internal sites can be transformed into gripe sessions

D

tinaa@#rethinking I think we are all tired of your nonsense. You are a liar and can consider yourself fired. (No, I’m not kidding.) Feel free to tell us all when you complained on the hotline and who/how we responded.

Glbrink07@#rethinking Folks, you been paid for all the travel time? I haven’t. Sounds like a class action to me. Tina A. says we can call the hotline but we know we’ll get canned if we don’t train & do inventory off the clock. Time 2 fight?


Typical emerging issues

Disparaging comments by employees about company, employees, products

“To the customers; how can you trust a company that treats their salespeople like cattle, are they trying to make withered-up cows before they slaughter them?”

Employees’ use of company logos and trademarks to complain, mock or disparage

Employees’ disclosure of confidential information about the company, customers, and products to complain or disparage?

Can your social media policy stop any of this?


G4S Secure Solutions (USA) Inc.

Security company social media policy that prohibited employee discussion of work-related legal matters AND the posting photographs of uniformed employees on social media sites was lawful in part The provision prohibiting discussion of work-related material

was unlawful

The provision prohibiting posting photographs of uniformed employees on social media sites was lawful


Stop & Shop Supermarket Co. LLC

In March 2012, New York’s largest grocery workers’ union filed charges with the NLRB against Stop & Shop Supermarket Co. LLC, challenging its social media policy as a vague and overbroad in violation of Section 7 of the NLRA

Policy: prohibits employees’ disclosure of confidential information either externally or to fellow employees and prohibits their discrediting the store’s services or products on social networking sites

Union Argument: “confidential information” includes information about wages and benefits paid both to oneself as a worker or with regard to another employee


What Can the Employer Do?

Objective and neutral controls: Not on employer’s time

Not with employer’s resources

Not in violation of employer’s legal responsibilities (anti-harassment, anti-discrimination, misappropriation, unfair competition, trade disparagement laws)


Carefully draft social media policy

Must be narrowly drawn and cannot be construed as prohibiting protected Section 7 activity

E.g., discussing wages and other terms and conditions of employment

Savings clauses may not justify an otherwise unlawful policy

E.g., “this policy will not be interpreted or applied in a manner that interferes with an employee’s rights under the NLRA.”

Specific prohibitions that have a business justification should be used; broad prohibitions have been invalidated

E.g., “no disparagement of the company , its products, or customers”

“no confidential or sensitive information (defined to include personnel information)”


NLRB Continues Challenging Social Media PoliciesNLRB considers these unlawfully overbroad:

“Avoid commenting on EMPLOYER or any EMPLOYER location. . . . Be respectful of others and note that the opinions you express are your own and not those of EMPLOYER. “

“Refrain from posting images of HOTEL’s locations or facilities or displaying HOTEL logos.“

Unauthorized disclosure or use of any confidential information about EMPLOYER,, its associates, its clients or guests, or any trade secrets you have learned through, or as a result of, your employment . . . .

Management reserves the right, however to determine when an associate’s activities represent a conflict with the company’s interests and to take whatever action is necessary to resolve the situation, including terminating the associate.


NLRB Continues Challenging Social Media PoliciesThe following are likely to be invalidated by NLRB:

Prohibiting disparaging comments about employer

Requiring communications to be “respectful” or “professional” when discussing work issues/conditions, employer, employer community

Avoiding communications that negatively impact employer’s reputation

Requiring self-identification of employee

Broadly prohibiting use of confidential or sensitive information without prior approval

Broadly prohibiting use of company logo or name


NLRB Continues Challenging Social Media Policies The NLRB’s stated goals to keep in mind:

Avoid overbroad prohibitions that could restrict employees’discussion of working conditions and wages among themselves

Avoid discipline of employees who use social media for concerted or protected activity


Additional Steps for Employers to Take

Adopt a policy for responding to perceived inappropriate social media communications

Train managers to seek assistance in responding to negative postings – they should not respond without oversight

Consider identifying specific resources within company to guide managers and others

Educate managers about basics


Topic 3:E-harassment, E-discrimination, and Duty to Monitor


Virtual Harassment is ActualHarassment

EricL: That’s so typical you alskdjf asdkfja. You people don’t take any responsibility for yourself. Why don’t you go ksajjjsj. 3.15.09 – 4:15pm

Krstnk: You’re an ignorant kasdjlk. I can’t believe you say things like that. On Monday, I’m bringing my boyfriend in to kick your ijasoj. 3.15.09 – 6:10pm


Duty to Monitor? To Respond?

No clear authority yet Maypark v. Securitas Sec. Servs. USA, Inc., 775 N.W.2d 270 (Ct. App. Wisc.

2009) Facts: Security guard copied pictures of female employees from their ID

badges and sent them to his home computer. He altered the pictures and posted them to an adult website.

Claim: Negligent training and supervision.

Holding: Employer was not negligent because it provided adequate training, it had a system to monitor Internet usage in place, and the security guard’s act was not foreseeable.

Notable Quote: “[E]mployers have no duty to supervise employees’ private conduct or to persistently scan the world wide web to ferret out potential employee misconduct.”

What if . . . Employer’s site? Complaint reported?


Duty to Monitor? To Respond?

Several guiding factors:1. Is it an employer-controlled site?

2. Does the employer require or encourage its use?

3. Does the employer derive a substantial benefit?

4. Use of employer’s resources not relevant5. Was union or protected concerted activity being observed?

6. Did the employer know (or should it have known) about the harassment? Blakey v. Cont’ l Airlines, 751 A.2d 538 (N.J. 2000)

C.F.R. § 1604.11

Cal. Gov't Code § 12940(j)


Topic 4:Proactive Strategies


Lessons Learned . . .

Hiring Issues There are significant risks of accessing information that

cannot lawfully be used to make a decision – disparate treatment and impact cases

There are issues of reliability and credibility

If you want to investigate social media sites, consider a third party

Follow the FTC rules for credit and background checks

Notice to employees



Hiring issues cont. Be prepared for an audit of your computer files

Only consider information that is routinely evaluated as part of the traditional application process

Develop a policy and protocol for using social media to gain information about employees and applicants



Duty to investigate pre-hires No cases yet regarding failure to investigate via social media

Plaintiffs’ bar is beginning to discuss negligent hiring theories


Proactive Strategies

CLEAR AND COMPREHENSIVE POLICY

Given NLRB invalidation of common policy provisions, seek legal guidance

Provisions cannot be broad prohibitions

Provisions should be unique to your company and its needs

Employers can protect confidential and sensitive information but the language cannot be so broad as to prohibit disclosure of wages, hours, or terms and conditions of employment


Proactive Strategies

Develop policy for social media research and investigations

Train managers in proper uses for social media “research”

Train managers in proper response to negative social media postings/information by employees

Keep up on NLRB developments


Questions?


Thank You.


Contact Information

Anna Segobia MastersLos Angeles

(213) 615-1711

[email protected]

Danielle GersonLos Angeles

(213) 615-1941

[email protected]

Slide Number 1New Media in the Workplace: �The Interaction Between Social Networking Sites and Employment DecisionsToday’s PresentersToday’s GoalsSlide Number 5StatisticsNow you know this . . . Then there is this…� Do you have an obligation to investigate pre-hire?Do you even want to know…?Now you see this . . . Expanding reliance on social media for employee informationSlide Number 12Laws That Limit an Employer’s Use of Social Media For Employment Decisions �Laws That Limit Employer’s Use of Social Media For Employment Decisions�Stored Communications ActStored Communications Act�Cases of InterestWhat is the NLRA?Claims under the NLRAProtected Concerted Activity?Some ExamplesWhat’s Your Password?Miscellaneous ClaimsMiscellaneous Claims contd.Slide Number 24The disgruntled employeeDisclosing confidential or disparaging informationDisclosing a trade secret?Your internal sites can be transformed into gripe sessionsTypical emerging issuesG4S Secure Solutions (USA) Inc.Stop & Shop Supermarket Co. LLCWhat Can the Employer Do? Carefully draft social media policyNLRB Continues Challenging Social Media PoliciesNLRB Continues Challenging Social Media PoliciesNLRB Continues Challenging Social Media PoliciesAdditional Steps for Employers to TakeSlide Number 38Virtual Harassment is Actual HarassmentDuty to Monitor? To Respond?Duty to Monitor? To Respond?Slide Number 42Lessons Learned . . . Lessons Learned . . . Slide Number 45Proactive StrategiesProactive StrategiesSlide Number 48Slide Number 49Contact Information

Documents

© 2012 Winston & Strawn LLP · 2012. 4. 19. · tinaa@#rethinking I think we are all tired of your nonsense. You are a liar and can consider yourself fired. (No, I ’ m not kidding.)