1. Social Media Policies: What Employers Can and Cannot Do Thomas D. Rees, Esq. High Swartz LLP February 23, 2016 1

2. The Old School “Never write what you can say; never say what you can nod; never nod what you can wink.” 2

3. Who Said This? Martin Lomasney, Boston Political Boss (pictured at left on preceding page), 1859-1933 David Lawrence, Pennsylvania Governor (1959-63) and Pittsburgh Mayor (1946-59) (pictured at right on preceding page), 1889-1966 Good words to remember before posting on social media 3

4. Who Are These People? Victims of Their Own Postings -Justine Sacco -Natalie Munroe -Gerod Roth Victims of Others’ Postings -Patrick Snay -Anjali Ramkissoon -Anna Land 4

5. Common Social Networking Sites Facebook Twitter LinkedIn Blogs Snapchat Instagram YouTube Pinterest 5

6. Who Can Monitor Social Networking Sites? Anyone! Prospective Employers Employers Employees Law Enforcement Judicial System (e.g., divorce, custody, support, parental rights cases) Parties to Litigation Educational Institutions 6

7. Key Legal Limitations on Monitoring/Use of Postings Statutes preventing employers from demanding access (NJ, Delaware, Maryland) Labor relations laws Discrimination laws Constitutional issues (public employees only) Statutes limiting employer regulation of off-duty activity Privacy laws Professional ethics 7

8. Using Social Media to Screen Applicants Risks: Discrimination Benefits: Verification of work history, suitability for job Bozeman example Difference between public and private content 8

9. Purposes of Monitoring Current Employees Honesty (overtime, sick leave, worker’s compensation) Loyalty (competition, comments) Compliance with laws (substance use, harassment, privacy regulations) Inappropriate conduct Threatening conduct 9

10. But Don’t Even Think of Disciplining employees for engaging in concerted activities for mutual aid and protection Adopting policies that prohibit communications that could be concerted activities AND REMEMBER: Federal labor law does apply to nonunionized employees! 10

11. What Employers May Discipline Rude comments about customers or members of the public Disclosure of trade secrets or confidential or private information Use of social media to harass or threaten others 11

12. What Employers May NOT Discipline Discussions of wages, hours, benefits Criticism of supervisor conduct at the workplace Profane or harsh comments related to working conditions 12

13. Permitted Social Media Policies Requiring courtesy to public Requiring cooperation at work Prohibiting threatening conduct Prohibiting insubordination Prohibiting harassment Prohibiting racial/ethnic slurs Prohibiting specific activities that are conflicts of interest 13

14. What Policies Employers May Not Adopt Overly broad confidentiality rules Broad prohibitions on disrespectful, defamatory, profane, or damaging comments Broad prohibitions on posting photos or use of logos Prohibitions on commenting on employer and its performance 14

15. Sample Policy: Wendy’s Be thoughtful in all communications in email and social media. Do not comment on trade secrets and proprietary information without advance approval. Do not make negative comments about customers. Use of social media on company equipment during working time is permitted if for legitimate preapproved company business. 15

16. What Wendy’s Employees Can’t Do on Social Media Take, distribute, or post photos or videos/audios while on work time (to protect vs. harassment or invasion of privacy or disclosure of proprietary information) Create blog related to company without advance approval BUT concerted activities related to working conditions or strike/protest issues not barred 16

17. What Wendy’s Employees Can’t Do on Social Media Harass, threaten, libel, or defame fellow employees, customers, competitors Make knowingly false representations Use logos or trademarks for commercial purposes without approval 17

18. Your Employee has Left- What Next? Who owns the employee’s social media pages/accounts? Importance of keeping ex- employee from taking trade secrets, confidential contacts But don’t misappropriate employee’s social media accounts 18

19. Monitoring Ex-employees Checking for violation of restrictive covenants Checking for improper disclosure of trade secrets or confidential information Ensuring compliance with non- disparagement agreements Checking for statements that are inconsistent with ex-employee claims Checking for violations of computer fraud laws 19

20. Three More Quotes to Remember “You have the right to remain silent. Anything you say (or do) may be used against you.” BUT: “Employees shall have the right to engage in concerted activities for the purpose of mutual aid or protection.” “You find something,” the Boss said. “But what if there isn’t anything to find?” I asked. And the Boss said, “There is always something.” – All the King’s Men, Robert Penn Warren 20

21. Questions? 21