1. MANAGING SOCIAL MEDIA IN THE WORKPLACE Brian J. Moore, Esq. brian.moore@dinsmore.com www.wvlaborandemploymentlaw.com

2. Social networking  Building and maintaining social relations among people who share interests and/or activities. The “social networking” we are talking about today is that which is typically happening over the internet, including wireless internet on cell phones, and includes such things as instant messaging, texting, and posting updates on social networking websites, such as Facebook, Myspace, and Twitter.  If you are still unfamiliar with these sites, you won’t be after this presentation.

3. Why you can’t ignore social networking:  Don’t you want to know what individuals, including your employees, are saying about you and/or your company on the internet?  Don’t you want some extra information on that person you are about to hire?  Don’t you want to know if someone is infringing upon your trademarks, trade secrets, or other confidential information?

4. Why you can’t ignore it...  Social networking can be used for good, such as marketing, screening applicants, recruiting, etc.  Social networking can be used for bad and the sky is the limit. The internet and smartphones have basically made it much faster and easier for individuals to do harm to others, including their employers.  Sexual (or other forms of) harassment  Defamation  Stealing of confidential information and posting it for everyone to see

5. Facebook  Facebook -- http://www.facebook.com  Launched in February, 2004, Facebook is a social networking website where users can add friends, send them messages, and update their profiles to notify friends about themselves. Users have the ability to join networks organized by city, workplace, school, and region, as well as groups for common interests. The social networking site was initially launched in 2004 by Harvard undergraduates and quickly spread worldwide. Facebook currently has 300 million active users (400 million visitors). The fastest growing demographic is those 35 years or older.

6. LinkedIn  LinkedIn -- http://www.linkedin.com  Launched in May 2003, LinkedIn is a site for professional networking. 47 million members from 200 countries. Executives from every Fortune 500 company are on LinkedIn.  Features status updates and discussion groups.

7. Twitter  Twitter -- http://www.twitter.com  Launched in March 2006, Twitter asks one question: “What are you doing at this exact moment?” Answers must be 140 characters or less, and can be sent via mobile texting, instant messaging, and the web.  Celebrities and companies use for self- promotion.  Grew 1,382% between Feb. 2008 and Feb. 2009

8. MySpace  MySpace -- http://www.myspace.com  Launched in August 2003 – this used to be the site that you heard about until Facebook took over  185 million users / 350,000 new per day; generally younger  Users have their own webpage, with music, decorations, and blog posts

9. MeettheBoss  MeettheBoss -- http://www.meettheboss.com  Similar to LinkedIn, MeettheBoss is a business networking tool for financial services executives around the world. Members of MeettheBoss have individual profiles with listed business interests. The site features interviews, instant messaging between members, discussion groups, and secure video conferencing.  About 20,000 members

10. Plaxo  Plaxo -- http://www.plaxo.com  Plaxo is another social networking service and online address book that provides automatic updating of contact information. Users store their information on the servers and when this information is edited by a user, the changes appear in the address books of all those listed as a contact. In 2008, Plaxo reported 20 million users.

11. Youtube  Youtube -- http://www.youtube.com  Youtube is a video sharing website on which users can upload, share, and view videos. Three former PayPal employees created in February 2005. In November 2006, Google purchased it for $1.65 billion.  Anything you can imagine someone doing is probably somewhere on Youtube – maybe even current or former employees ranting about your company.

12. Text Messaging (“Texting”)  Texting is the exchange of brief written messages between mobile and portable devices over cellular  Hard to police in the workplace, especially if the employee owns the phone  Provides a great transcript (i.e., evidence in a sexual harassment lawsuit) – hard to deny what was said  Written word much more subject to multiple interpretations

13. Sexting  Sending text messages containing sexually explicit words and/or photos  Has been in the news a lot as it pertains to kids in high school / junior high (child pornography laws)  Also a big issue for employers  More difficult to find out about, especially if employees using their own phones

14. Blogs  A contraction of the term “web log,” blogs are a type of website, usually maintained by an individual with regular commentary, pictures, and videos  You most likely heard of blogs during the last 3 Presidential elections, especially the last 2 – some blogs run by individuals are actually cited as authority  112,000,000 blogs as of December 2007

15. Statistics As many as 47% of employers use social networking sites to look at candidate profiles. (www.vault.com)

16. Statistics  In a recent survey by FaceTime: 79% of employees use social media at work for “business reasons” 82% use social sites at work for personal reasons

17. Other Statistics  More statistics: 74% of employees say its easy to damage a company’s reputation via social media 24% of employees said they did not know if their employer had a formal policy regarding social networking 15% said that if their employer did something they did not agree with, they would comment about it online

18. Other Statistics  More statistics: 27% of employees said they do not consider the ethical consequences of posting comments, photos or videos online 37% said they rarely or never consider what their boss or colleagues would think, and 34% said they rarely/never consider what their clients would think

19. Other Statistics  More statistics: 58% of executives agree that social networking should be a boardroom issue, but only 15% said it actually is

20. Firing employees because of their actions on the internet  Two new phrases have entered our lexicon: 1.“Dooced” – to be fired because of comments made about the company in a personal blog 2.“Facebook fired” – being fired for something you posted on Facebook

21. The story of dooce.com  The year is 2002  Employee (web designer / graphic artist) runs a personal blog called “dooce.com”  Employee writes satirical accounts of her experiences with her employer  Employee fired  “Dooced” is now defined as getting fired for something you’ve written on your personal website (urbandictionary.com)

22. Real world example: firing  The voters of Arlington, Oregon recalled their Mayor after discovering that her MySpace page contained pictures of her posing in lingerie in front of a fire truck. The photos had been taken before she had become Mayor. Citizens suggested that her decision to pose in lingerie in front of a fire truck called into question her decision-making abilities. The former Mayor suggested in an interview that the photo was private since the photo was on her MySpace page and that is why it is called “MySpace.”

23. Real world example: firing  In March 2009, an employee of the Philadelphia Eagles was fired for criticizing his employer on his Facebook page. Dan Leone, a gate worker at the stadium, posted an angry, expletive-laced complaint about the team’s failure to re-sign safety Brian Dawkins. Management found out and fired him for making the team look bad.

24. Real world example: hiring  A story reported on MSNBC.com cited an interview with a corporate recruiter charged with hiring physicians. As part of the recruiter’s due diligence he logged on the Facebook site of a young female psychiatrist. After finding pictures of the doctor taking off her shirt at parties (on more than one occasion) he called the candidate and asked for an explanation. He apparently was unimpressed and did not offer the position, noting that, “Hospitals want doctors with great skills to provide great services to communities. They also don’t want patients to say to each other, ‘Heard about Dr. Jones? You’ve got to see those pictures.’”

25. Real world example: pure embarrassment  Busted by your boss

27. Real world examples

29. Facebook Fired  http://www.youtube.com/watch?v=qMIzCmPPxm E  http://www.youtube.com/watch?v=tmALiWAUbC A

30. Real cases - defamtion  The “Skanks in NYC” blog case – Cohen v. Google, Inc.

31. Business Justifications for On-The-Clock Use of Social Networking  Strengthen professional relationships  Expand professional network  Promote company blog / Marketing the business  Access information / employee message boards

32. Do’s and Don’ts of Using Facebook/Twitter for Marketing  DO keep a separate professional profile  DO add value with your posts.  DO answer people’s questions.  DON’T deliberately sell your services.  DON’T constantly talk about how much you are working for your clients.

33. Do’s and Don’ts  DO be aware that everything you say is almost permanent  DO emphasize quality over quantity in your posts  If you DON’T take anything else away from this, simply be aware of your online presence. If it is nonexistent, are you satisfied with that in the year 2010?

34. Do’s and Don’ts continued…  DO “Google” yourself – if you’re not on the first page, you’re not there  DO raise your online profile – Gmail account / Google Profile / Link your Facebook / LinkedIn / Twitter accounts – the more links, the easier it is for Google to find you  DO associate a unique business name with yourself

35. Potential Benefits of On-Line Social Networks to Employers  Use in litigation  Use in investigations (for example, harassment)  Recruiting (Twitter / Facebook Job Postings)  Screening applicants

36. Potential Risk to Employers  Textual harassment – harassment of other employees through social media websites  Not just “sexual” harassment  Harassment / discrimination suits can easily cost a company between six and seven figures

37. Possible solution  Review and update your anti-harassment policies to ensure that online conduct is covered  Remind employees of the guidelines set forth in sexual harassment policy  Consider monitoring if appropriate  Investigate and take action if needed

38. Potential Risk to Employers  Violation of anti-discrimination laws Be careful what you look for...

39. Potential Solution  Have a policy regarding use of social networking in background checks  Consistently apply the policy  Limit such screening to a few well-trained individuals  Have a non-decision-maker conduct search and filter information  Don’t consider illegal criteria!

40. Potential Risk to Employers  Invasion of Privacy Claims Is information posted on the web “private”?

41. Solution  Include disclosure on application that such information will be accessed with a signed “no expectation of privacy” clause  Never use subterfuge to gain information  Friending someone on Facebook to get information (lawyers can’t do this per ethical rules)

42. Potential Risk to Employers  Fair Credit Reporting Act Requires that employers obtain express written consent before conducting a background check for employment purposes, and written notice and copy of report before taking action upon its contents

43. Solution  Obtain written consent before conducting background check  Provide applicant with notice and copy of report before taking adverse action  Give adverse action notice (name, address and phone number of screening company; a statement that the company did not make the adverse action; the right to dispute the accuracy of the report)

44. Potential Risk to Employers  Use in Litigation

45. Possible solution  Use non-decision-makers to compile and filter online information  Train supervisors

46. Other problems  Spam/malware/illegal material

47. Limitations on Employer’s Right to Monitor Electronic Communications 1.Electronic Communications Privacy Act (“ECPA”) Prohibits employer from “intentionally intercepting” electronic communications, including email and internet access. − Interception must occur during actual transmission

48. ECPA “Safe Harbor”  E-mail interception is permissible where: 1.The party consents to the interception; or 2.The interception occurs in the ordinary course of business

49. Limitations on Employer’s Right to Monitor Electronic Communications 2.Stored Communications Act (“SCA”) Creates civil liability for one who − intentionally accesses without authorization a facility through which an electronic communication service is provided; or − intentionally exceeds an authorization to that facility

50. Defenses to SCA Claim 1.Consent 2.Ordinary Course of Business 3.Access is by entity providing communication service

51.  Action Steps for Employers Consider and discuss Social Media policy Tailor it for your company, culture, business needs One size will not fit all ESPN will differ from medical offices Focus on work performance; if it suffers because of online time, discipline and manage

52. Why you need a social networking policy  Protect the company’s trade secrets, confidential, proprietary, and/or privileged information.  Protect the company’s reputation  Protect the privacy of other employees  Establish guidelines for whether use of social networking sites during work hours is permitted.

53. Considerations for Your Policy  Prohibit / Permit / Encourage Social Networking  If you prohibit, how will you monitor?  If you permit, what are the limitations?  Tie in other policies – business conduct; fair use; harassment; confidentiality  Distribution & Training

54. Considerations for Your Policy  Cover latest technologies – E-mail; internet; instant messaging; blogs; social networking; smartphones; laptops  No expectation of privacy in any company owned and issued system  At home conduct

55. Considerations for Your Policy  Prohibit unlawful conduct  Provide a central resource for reporting violations  Signed acknowledgement

56. Other considerations  Urge employees to go to HR before blogging about work-related problems  Set forth disciplinary consequences  Do not selectively enforce the policy

57. Sample policy  Social Media Policy Encourage employees’ involvement to build relationships, learn, innovate and collaborate Business Conduct guidelines must be followed Employees are responsible for content; be careful Identify yourself (no anonymous) when talking about Company Outside content should have a disclaimer (“I’m not the Company”) Respect copyright and fair use laws Don’t publish Company’s confidential info Don’t talk about clients, partners, suppliers, etc.

58. Problem: Decreased Productivity  Same issue as with the internet – good for some things, but bad for others, including productivity  Same solution – limit personal use and consider monitoring

59. Protecting your business  Are you devoting enough resources to protecting your company from cyberabuse?  Trade secrets and other proprietary information comprise 62 percent (average) of the valuable data for a business, but companies devote only 40 percent of their data security budgets to actually protecting this information – the rest is spent on protecting client data.

60. Protecting your business Are you covered?  Employment practices liability insurance may cover employee related abuses such as harassment, discrimination, etc.  Cyberliability insurance may cover data breaches, destruction, liability for viruses, etc.

61. Protecting your business – pending lawsuit  Comb internet for things the plaintiff / former employee may be saying about you or the lawsuit  Remind attorney to explore online information on the plaintiff

62. Questions? Brian J. Moore Charleston ^ 304.357.9905 brian.moore@dinsmore.com www.wvlaborandemploymentlaw.com