New Jersey League of Municipalities
SOCIAL MEDIA AND ELECTRONIC
COMMUNICATIONS – THE IMPACT
OF TECHNOLOGY IN THE
WORKPLACE
Presented by:
BRIAN W. KRONICK, ESQ.
Genova, Burns & Giantomasi
(973) 533-0777
November 16, 2011
Social Media: Definition
• Social Media: “Media designed to be disseminated through
social interaction, created using highly accessible and
scalable publishing techniques. Social media uses Internet
and web-based technologies to transform broadcast media
monologues (one to many) into social media dialogues
(many to many).” Wikipedia, 2010
• Common social media forms: blogs, company forums, wiki
sites, YouTube, Facebook, Twitter, Friendster, LinkedIn,
etc.
2
What Are The Benefits Of
Social Networking?
•
•
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•
•
Sense of Community
Branding/Sales/Marketing
Customer Service
Sharing Knowledge and Ideas
Recruiting
3
Legal Risks
What should you be worried about?
1. Employee Free Speech/Right to Privacy v. Employer Right
to Discipline/Terminate
2. Claims of Protected Concerted Activity
3. Harassment/Discrimination
4. Confidentiality/Disclosure
5. Facebooking at work
6. Competition issues
4
Legal Risks – Right to Discipline
Employees’ Free Speech & Right To Privacy v.
Employers’ Right To Discipline/Termination
• Employee has a First Amendment right to free speech and a
Fourth Amendment right to privacy in certain of his
personal belongings. So, the question becomes: When can
an employer regulate the activities of its employees that
occur online in the context of social networking?
5
Legal Risks – Right to Discipline
Employer has the right to discipline/terminate when:
• the person is an employee, and
• the activity negatively impacts the Employer in some way,
• the activity occurred using the Employer’s computer
network and the Employer has a policy regarding the right to
monitor or the Employer has a policy regarding the proper
use of social media that was violated.
6
Legal Risks – Protected Concerted Activity
• Generally under the National Labor Relations Act, an
employer may not retaliate against employees for
engaging in conduct that is considered “protected,
concerted activities.”
• That means when 2 or more employees complain
about their working conditions they are protected from
adverse action from their employer.
• These employees do not have to be unionized in order
to be protected under the NLRA.
Legal Risks – Protected Concerted Activity
• 3 recent cases reveal that the NLRB is using social
media to demonstrate its commitment to protect
employees.
• In NLRB v. AMR: union employee posted negative
comments about her supervisor on her facebook
account after he denied her union representation
during an investigative meeting. On facebook that
night, she called him very derogatory names. Other
co-workers joined in on the wall posts in support of the
original employee. She was fired for her original post
which violated AMR’s social media policy by placing
AMR in a bad light on a social network.
• Case settled in first month.
Legal Risks – Protected Concerted Activity
NLRB v. Thomson Reuters: NLRB is arguing that a
writer for Thomson Reuters was improperly disciplined
for tweeting the following:
Legal Risks – Protected Concerted Activity
• Because this writer was making a statement for all
guild members, this is also being considered
“protected concerted activity.”
• This employee is a union activist AND
• Was only verbally disciplined.
Legal Risks – Protected Concerted Activity
NLRB v. Hispanics United of Buffalo – employees
engaged in concerted activity protected by the NLRA
when they used a worker’s personal Facebook page to
post angry and defensive messages regarding another
co-worker’s comments about their work.
• First post-hearing decision by an NLRB judge involving
a Facebook posting.
• Reason for termination of employees (harassment)
unsubstantiated
Legal Risks – Protected Concerted Activity
NLRB scrutinizing these types of communications and
going after companies who are taking action against
any employees with union ties.
Legal Risks – Protected Concerted Activity
NLRB Report on Social Media Cases
• Examples Where NLRB Found Policy Was Too Broad
– Posting pictures of company (ex. logo)
– Making disparaging comments about company or co-workers
– Using company name, address, and information in their
personal profiles or revealing info re: co-workers/clients
– Using social media in way that would compromise privacy,
constitute embarrassment of any employer/employee, or lack
truthfulness or damage reputation of employer/employee
Legal Risks – Protected Concerted Activity
NLRB Report on Social Media Cases
• Examples of Best Practices for Social Media Policies
– Clear and understandable to average employee
– Not overbroad
– Put employees on notice (examples of prohibited
conduct and definitions of ambiguous terms)
– Limiting language advising employees that policy
does not apply to activities protected by NLRA
Legal Risks - Harassment/Discrimination
• Harassment/Discrimination: Employees
cannot use social media as a vehicle to harass
each other or treat each other unfairly.
• Remember: Carefully evaluate support for
any adverse action taken based on an
employee’s use of social media to harass
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When Do Legal Issues Arise?
Pre-Hire:
•
Recruitment/Screening
•
Hiring Decision
Post-Hire:
•
Discipline/Termination
•
“Facebooking” at work or about work events
Post-Termination:
•
Employees retaining contact with clients/vendors
16
Pre-Hire Issues
•
Thirty-four percent of hiring managers who admit
that they have screened job candidates via social
networking profiles say that they found content
that caused them to dismiss a candidate from
consideration, according to a survey by
CareerBuilder.com.
17
Pre-Hire Issues
Profile Disqualification
•
•
Candidate posted information about them drinking or using drugs (41 percent)
Candidate posted provocative or inappropriate photographs or information (40
percent)
Candidate had poor communication skills (29 percent)
Candidate bad-mouthed their previous employer or fellow employee (28
percent)
Candidate lied about qualifications (27 percent)
Candidate used discriminatory remarks related to race, gender, religion, etc. (22
percent)
Candidate's screen name was unprofessional (22 percent)
Candidate was linked to criminal behavior (21 percent)
Candidate shared confidential information from previous employers (19 percent)
•
•
•
•
•
•
•
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Pre-Hire Issues
Profile Supported Qualification
• Candidate's background supported their qualifications for the job (48
percent)
• Candidate had great communication skills (43 percent)
• Candidate was a good fit for the company’s culture (40 percent)
• Candidate's site conveyed a professional image (36 percent)
• Candidate had great references posted about them by others (31 percent)
• Candidate showed a wide range of interests (30 percent)
• Candidate received awards and accolades (29 percent)
• Candidate's profile was creative (24 percent)
19
Pre-Hire Issues: Hiring Process
• Social Media should not change your common sense
approach to hiring. Your legal obligations regarding what
can and cannot be considered during the interview and
hiring process are the same. If you could not use it before,
you cannot use it now simply because you learned about it
through social networking sites.
– Examples: political affiliation; religion; age or approximate age;
disabilities; sexual orientation; race
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Post Hire
Discipline/Termination
• No Right to Privacy while using Employer
computers. [internet use and computer monitoring
policy].
• Right to Free speech is balanced by Employer’s
right to manage business and responsibility for its
employee’s actions.
21
Post Hire
•
•
•
•
Harassment/Discrimination
Fair Trade/Competition
Breach of confidentiality
Breach of duty of loyalty
Employees need to know that their online conduct subjects
them to discipline, even if it occurs outside of work, not on
the Employer’s computers, so long as it touches or concerns
the employer.
22
Post Hire
“Facebooking” at work
• Employees are now using Facebook/twitter to
communicate with each other regarding workplace
events and issues.
• This has become a non-work sanctioned means of
communication.
• How many of you are “friends” with your
subordinates?
23
Post Hire
What about learning too much information about employees
from their social network accounts?
-Employee on FMLA leave:
Facebook pictures show them surfing at the beach?
Dancing at a night club?
Courts have been holding that this social networking
information is relevant and discoverable.
24
Post Hire
• Romano v. Steelcase, Inc. – NY Court permitted
discovery of contents from employee’s Facebook and
MySpace pages which displayed content in direct
contradiction to her claims that she had sustained
permanent injuries.
– Privacy setting to “friends-only” did not
prevent discovery
– Previously deleted items discoverable
Post Termination
• Continued Contact with Clients/Vendors: Can you
require that employees end their Facebook/LinkedIn
connections with all of your existing clients?
• Current case law suggests that employees can violate their
non-compete agreements by continuing to “connect” with
clients and customers on their social networking sites after
termination.
26
Social Media and the First Amendment
• City of Ontario v. Quon et al. – Supreme Court’s first
case on electronic privacy rights of public employees
– Court weighs officer privacy rights against government's
interest in managing public workplace
– Government read text messages of officers to determine if the
character limit placed on phones forced officers to pay out of
pocket for work-related expenses or if it was paying for
personal communications
– Court found public employer could read text messages from
phones provided by employer because it had “work-related
purpose”
Social Media and the First Amendment
• In the Matter of Darious Smith, City of Newark
– Messages posted on NewarkSpeaks.com (defamed
and ridiculed fellow or superior officers)
– Messages posted while off-duty
– Court said police officers held to higher standard
– “State agencies have an interest in regulating their
employees’ conduct related to speech, particularly
when such speech may disrupt governmental
operations.”
Social Media and the First Amendment
• In the Matter of Moses Harb, Town of West NY
– ALJ upheld discipline of officer for comments on
MySpace page
– ALJ upheld officer’s removal from employment
– Not constitutionally protected speech
– Website was accessible to public and he identified
his position as a police officer (important issue)
Social Media and the First Amendment
• Examples of potential employer interests:
– Maintain discipline
– Harmony among members
– Public confidence in ability to fulfill its mission
– Need for confidentiality
– Need to limit conduct impeding proper and
competent performance of duties
Social Media and the First Amendment
• Recent Controversial Story
– Union County high school teacher makes anti-gay
postings on Facebook
– Compared homosexuality to a sin that breeds like
cancer
– Occurred outside of school setting
– May have implications on First Amendment and
Social Media
Social Media and the First Amendment
• Recent Controversial Decision in Paterson
– Administrative Law Judge ruled that tenured
teacher should lose job for Facebook posting
– “i’m not a teacher – i’m a warden for future
criminals.”
– Districts need to operate schools efficiently
outweighed teacher’s right to free speech here
Practical Remedies: Policies/Training
• Comprehensive policies are an Employer’s first line of
defense against the risks inherent in employee use of
social media.
Practical Remedies: Policies/Training
• Challenges/Considerations:
– 1st Amendment: Craft policy narrow enough to restrict or
advise only on prohibited conduct
v.
– Employment Laws: Policies need to protect employees in the
workplace
v.
– Union Activity: Enforcement: Mindful of disciplinary action
against what might be deemed protected activity
Practical Remedies: Policies/Training
• A Good Policy will communicate expectations and will
address
– The proper use of business-related social media
– Confidentiality
– Respect for copyright, fair use and financial
disclosure laws
– Transparency/Disclaimers
– Language
– Approval of Content
– Disciplinary process
Policy Essentials
• Advise employees act at their own peril;
• Prohibit use of social media which injures the
reputation of the Company or its clients or which
discloses confidential information;
• Advise employees that their own reputation is at risk;
• Advise to use common sense in postings;
• Ensure postings clearly reflect personal point of view,
not the point of view of the Company;
Policy Essentials
• Advise employees not to use company logos or
trademarks without permission;
• Comply with copyright, privacy, fair use and other
applicable laws
• Referral of media inquiries
• Endorsements
• Applicability to other policies
Practical Remedies: Policies
Other Relevant Policies To Consider:
• Electronic Communications Policy
• Internet Usage/Monitoring Policy
• Anti-Harassment/Discrimination Policy
Practical Remedies: Training
Meaningful Training Program
• A meaningful training program offered to your
employees to review these policies and guidelines will
also provide an excellent defense to your organization
for an employee’s improper use of the social media
policy.
Policy Distribution And Acknowledgement
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•
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Distribute Policies and Require that Employees Sign
that they Received Policy and are Responsible for
Reading it.
Several Ways To Accomplish:
Simply handing out and signing off
Attach to paychecks or paystubs
Email if there is some method of tracking receipt
In a training session or meeting so long as the
employees have to sign in