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Social Media, Technology and the Workplace: A Legal

Perspective

Archdiocese of Milwaukee: Gigs Geeks and God Conference January 10, 2019

Agatha K. Raynor araynor@crivellocarlson.com

Crivello Carlson, S.C.

414.271.7722

Scope of Presentation

• Intro: What is Social Media and How it is Being Used in Legal Settings

• Use of Social Media by Employers

• Social Media Legal Risks and Factors

• Privacy

• Hiring

• Harassment

• Discipline/Termination

• Other

What is Social Media?

According to Wikipedia.com:

“interactive computer-mediated technologies that facilitate the creation and sharing of information, ideas, career interests and other forms of

expression via virtual communities and networks”

Types of Social Media

• Social networking: FB

• Microblogging (Twitter, Tumblr)

• Photo Sharing: Instagram, Snapchat

• Video Sharing (YouTube)

Social media has been changing the world

• The way we socialize: 77% of US population has a profile on at least one social networking site (www.statista.com)

• The way we do business: Low-cost business advertising; online

reviews; online shopping

Law enforcement tool:

“Facebook Photo

Sinks Man Who Stole Police Gas”

Use of Social Media Can Be Used as Evidence in Discrimination Claims and Other Types of

Litigation

Evidence in Workers Compensation and Personal Injury Cases

“Court Okays Facebook Party Photos in Workers Comp Claim”

Legal Risks and Factors for Employers

• Privacy

• Hiring

• Harassment

• Discipline and termination

Privacy in the Context of Employers Viewing/Monitoring Employee Social Media

Accounts

Privacy

Wis. Stats 995.50:

"invasion of privacy" includes (in relevant part):

Intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider

private or in a manner which is actionable for trespass

So How Does this Apply to Social Media Accounts of Employees?

Wisconsin’s Social Media Protection Act: Wis. Stat. § 995.55 (2)

Employers may not:

• Request/require access (login) information or otherwise require a current/prospective employee to grant access or allow observation of a personal internet account.

Employers may:

• Require access information (such as a password) for a

device supplied by the employer

• Restrict access to web sites while using

its equipment or network

• View or access the personal internet account of

an employee if that account is open to the public

BEST PRACTICE

Draft a social media policy for employees that

(in relevant part) :

• Confirms that employer maintains right to monitor email and internet usage on employer-owned computers

• Confirms that employer can require access information (such as a password) for a device supplied by the employer

• Confirms which web sites (or types of web sites) are restricted on employer-owned equipment or networks

• Requires employees to execute signed acknowledgement

SOCIAL MEDIA IN HIRING

Social Media can be a useful

tool in the hiring/recruitment process:

• 59% of candidates use social media to research companies they are interested in

• 87% of recruiters use LinkedIn, but only 55% use Facebook

Source: talentworks.com (September 2017)

BUT, but beware of potential claims for discrimination arising out of

the hiring process …..• Viewing social media accounts during hiring process can provide

information regarding protected classes (race, religion, disability, age)

• Refusing to consider applicants without social media accounts – could that have an adverse impact based on age, race, religion?

• What to do with information regarding arrest/conviction record?

EEOC Request for Information

• State whether the respondent uses internet based search engines(Google, Yahoo, Bing, etc) to research applicants. If yes, which sitesare used, what information is gathered, and how/why this informationis used.

• State whether the respondent search applicants on social media(Youtube, Facebook, Twitter, etc). If yes, which sites are used, whatinformation is gathered, and how/why this information is used.

Social Media and Harassment: Employer Beware ….

Social Media

and

Employee Discipline

Discipline

• Discipline for violation of policy for use or overuse = OK, as long as:

• there is a clear policy AND

• it is applied equally

Discipline for Posting Inappropriate/Illegal Behavior/Conduct on the Job…

Discipline Posting Content in Violation of Employer Social Media Policy:

One of the Milwaukee police officers involved in the arrest of Bucks player Sterling Brown has been fired …. for violating social media policy — not for his conduct the night Brown was tased and

arrested, Morales said.”jsonline.com (09/13/18)

DISCIPLINE

• BEWARE:

• National Labor Relations Act protects conduct that is “protected concerted activity” (for union and non-union employers)

• From the NLRB website: “The law we enforce gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.”

DISCIPLINE

• BEWARE: From NLRB Website:

• “This protection extends to certain work-related conversations conducted on social media, such as Facebook and Twitter.”

A post by an employee on a social media website may be protected by the National Labor Relations Act if it relates to working conditions, wages and

includes concerted activity.

BEST PRACTICE

• Be careful in how you use social media in hiring and recruitment process

• Be aware of WI Social Media Protection Law

• Draft a social media policy for employees

- Make the policy clear

- Ensure that it does not violate NLRA

- Apply it evenly and consistently

BEST PRACTICE

Discipline and termination:

Overall, remember:

The same rules apply!!

“The more things change,

the more they stay the same”

Technology in the Workplace: Liability Related to Use of Cell Phones While

Driving

• A Texas Jury Awarded an Injured Woman Coca-Cola Hit with $21Million Verdict after one of its drivers hit a woman while the driverwas talking on her cell phone (using a hands-free device). The juryfound that the driver was nonetheless distracted.

• Coca-Cola had a policy in place requiring use of a hands-free devicewhile driving.

Technology in the Workplace: Use of Cell Phones While Driving

• PRACTICE TIP: Consider instituting a NO CELL PHONE whiledriving policy which includes prohibition against use of any phone(including hands-free and texting). BUT It is Not Enough to Have aPolicy on Paper – It Must be Enforced to Make it Effective.

Technology-Related Issues:Discoverability of Electronic Communications

• Electronic Communications May Be Discoverable (Especially if on an Employer-Owned Device)

• This can lead to comments that can come back and haunt an Employer (Example: “UGGH! Sally will be requesting ANOTHER FMLA leave. Enough is enough. This needs to STOP!”)

• Practice Tip: Implement an Electronics Communications Policy and Remind Employees that Electronic Communications May Become Public and to Use Good Judgment

Technology-Related Issues:Fair Labor Standards Act (FLSA) Compliance

• Generally, (FLSA) requires employers to pay non-exempt employeesminimum wage for all hours worked and OT for hours worked over 40hours in a week.

• So, what happens when a non-exempt employee checks and respondsto work-related emails “off hours”? ANSWER: The non-exemptemployee must be PAID for the time.

Technology-Related Issues:FLSA Compliance Practice Tip:

Implement policies for “off hours”/OT work:

• Include guidelines on whether such work is allowed or prohibited

• If allowed, set reporting policies and procedures

• Confirm that employees are required to comply with the policy or face discipline (But pay for all hours worked regardless)

Question and Answers