BRET STRONG, MANAGING SHAREHOLDER THE STRONG FIRM, P.C. NOVEMBER, 2013 Social Media: A Double-Edged Sword (the ever evolving world….LOL)

Part 1 An Overview of Social Media Issues

Overview of Social Media Issues What Is It? Facebook Personal profiles and company pages Twitter 140-character messages YouTube Online videos LinkedIn Personal resume-like profiles New stuff everyday…… Any expression of an online identity

Overview of Social Media Issues (Think of the resources good and bad devoted to it……..) Who Uses It And Why Should You Care? 1+ billion recognized users 933 billion minutes per month spent on Facebook 100+ million active users 230 million tweets per day 225+ million registered users 2 million registered businesses

Overview of Social Media Issues IP Infringement Invasion of Privacy Harassment Disparaging Remarks and Defamitory Remarks Confidential Disclosures

Overview of Social Media Issues Major Legal Considerations: National Labor Relations Act Active and pending State laws Active and pending Federal laws Secondary considerations: Americans with Disabilities Act Health Insurance Portability and Accountability Act

Overview of Social Media Issues So What Can You Do?  Know What Laws Exist and Follow the Evolving Legal Trends  Perform DAILY Searches of Company, Executives, Key Terms and Employees  Develop and Follow an Effective Social Media Policy  Implement Your Policy and Train Employees on Their Rights and Responsibilities With Social Media

Part 2 The NLRB and Developing Laws

Section 7 of the NLRA Section 7 of the NLRA provides that employees have a right to “engage in concerted activity for purposes of collective bargaining or for other mutual aid and protection”  Must be undertaken by 2 or more employees or by 1 employee with the authority of others; AND  Must relate to the terms and conditions of employment But, even “concerted,” does not protect:  Malicious or reckless actions  Employees who reveal company trade secrets or make threats of violent behavior

NLRB General Counsel Memos Three reports covering several cases and various company social media policies. Some cases involved employees’ use of Facebook, finding that the employees were engaged in "protected concerted activity" because they were discussing terms and conditions of employment with fellow employees. Other cases involved Facebook or Twitter posts, and the activity was found to be unprotected.

NLRB General Counsel Memos The remaining cases involved discharges of employees after they posted comments to Facebook. Several discharges were found to be unlawful because they flowed from unlawful policies. The reports underscored two main points regarding the NLRB and social media:  Employer policies can’t be overly broad  Mere gripes are not generally protected  Be careful of “interaction” between employees/managers and elected officials/government workers More information at:

Costco Decision Costco Wholesale Corp., 34-CA (Sept. 7, 2012)  Costco had a policy banning workers from posting statements online that harmed the company’s reputation  The court ruled that this was a violation of the employees’ Section 7 rights  This is an example of a policy where the restriction on speech was too broad, and without narrower language, it appeared to prohibit both protected and unprotected speech

BMW Decision Knauz BMW, 358 Case No. 13-CA (Sept. 28, 2012)  A sales associate was fired after posting Facebook pictures and comments of an event unrelated to his employer or fellow employees  The firing was upheld because the postings were not deemed concerted activity, so he was not protected by the NLRA  However, this case also ruled broad prohibitions against disrespectful conduct and language was a violation of Section 7

Hispanics United of Buffalo Inc. Decision Hispanics United of Buffalo Inc., Case No. 13-CA (Dec. 14, 2012)  Several employees of a non-profit were fired after posting comments and responses on Facebook criticizing their boss  “Lydia Cruz, a coworker feels that we don’t help our clients enough at [Respondent]. I about had it! My fellow coworkers how do u feel?”  The firings were overruled because the employees’ comments were deemed concerted activity discussing work conditions

What Can My Policy Limit? Protected Working Conditions, Wages, or Benefits Employee Opinions (Even if Factually Wrong) Colorful/Offensive Language Not Protected Personal venting/rants Disclosure of Confidential Information or Trade Secrets Harassing, Violent, or Abusive Language

Potential Laws Federal Law Social Networking Online Protection Act (SNOPA) TX State Law 4 House and Senate Bills in 2013

Did They Really Say That?

Part 3 Crafting a Social Media Policy

Direct Liability For Any “Company” Posts If your company uses its own company page or account, you will be directly liable for any damage caused Employee Issues Any harassment/discrimination claims that arise out of social media, even on employees’ personal accounts, can affect you through vicarious liability NLRB On/Off Work Site Any social media messages posted at work, during working hours can affect you, but so can personal-time posts from home if they involve harassment, etc. Work-Issued Electronic Devices Anything posted using work-issued devices can affect you, even if it is from a personal account during off-work hours Crafting a Social Media Policy

All electronic communications made at the workplace or on employer-issued devices are accessible by the employer, without warning Employer Access Any policies of anti-harassment, confidentiality, copyright, etc. carry over to social media use. Reasonable policies associated with workplace use of time are acceptable. Company Guidelines Employees must comply with all social media sites’ terms of service and rules Social Media TOS Generally, employees must maintain professionalism in all aspects of social media use Professionalism Crafting a Social Media Policy

NLRB has ruled favorably for social media policies that:  Restrict social media usage when necessary to ensure compliance with securities regulations or other laws  Prohibit employees from using or disclosing confidential and/or proprietary information  Prohibit employees from discussing in any form of social media trade secrets

Employee Handbook Social Media Laws Conclusion Power of Social Media

B RET L. S TRONG Phone Number: Fax Number: Questions?

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