Navigating the Promises and Perils of Social Media By: Heather L. Wilson Copyright © 2011 by FROST BROWN TODD LLC. The contents of this document are intended for general information only and should not be considered legal advice

Social Media: Overview  The more things change, the more they stay the same  Even before the Internet, employers had employees who:  Wasted time at work  Engaged in off-duty conduct that reflected poorly on the company  Engaged in conduct that injured other employees or third parties

Social Media: Overview  But, the Internet and social networks have:  Made it easier for employees to become distracted  Created more informal communication (i.e. texting)  Blurred the lines between workplace conduct and off-duty conduct (professional v. social networking)  Current Major Players: Facebook, LinkedIn, Twitter, and blogs

Social Media: U.S. Penetration by Age,

The Promises of Social Media  Fast and Free Marketing  Publicity and Marketing to Broad Audience  Recruiting Tool  Monster.com  LinkedIn  Screening Potential Applicants  Easily analyze writing ability, judgment, reputation, maturity, etc.  As many as 50% of employers use the Internet to vet applicants  Litigation Research  Assessing adversaries’ claims and credibility  Voir Dire Peter Townsend, “Online Social Networking, Legal Risks for Businesses,” Strafford Webinar (10/7/09); Elizabeth Ebanks, “Social Networking Sites in the Labor and Employment Realm,” Lorman Employment and Labor Update (September 2009)

The Perils of Social Media  Staying current and relevant takes time  Decreased employee productivity  Potential for negative publicity  Potential for viruses  Legal issues

Social Media Pre-Employment Screening  Too much information may create inference of discrimination.  Protected characteristics (age, race, religion, etc.)  Medical conditions (new ADAAA)  Severe depression  Employers cannot make adverse employment decisions based on these protected categories.

Social Media: Discrimination and Harassment  Same discrimination issues for current employees – too much information  Unwelcome comments about co-workers  Applying social media policies inconsistently  Simonetti v. Delta Airlines Inc., No. 5-cv-2321 (N.D. Ga. 2005)

Social Media: Liability to Third Parties  Defamation claim for disparaging comments  Negligent Retention Claims

Social Media: Employee Privacy Concerns  Stored Communications Act – Prohibits the unauthorized access of an electronic communications service or the unauthorized obtaining of an electronic communication while it is in electronic storage.  Pietrylo v. Hillstone Restaurant Group, 2009 WL (D.N.J. Sept. 25, 2009). Employer received password to invitation only MySpace group created for employees to gripe about work. Employee who gave management the password was never threatened with an adverse employment action, but feared she would be in trouble if she did not provide the password. Employer terminated employee. Court awarded compensatory damages (backpay) and punitive damages to employee.

Social Media: National Labor Relations Act  May protect both union and non-union employees who participate in “protected concerted activity.”  Usually involves an employee acting with or on behalf of other employees to improve working conditions such as wages and benefits.  E.g. Employee blogs about unsafe working conditions and calls on co-workers to band together to change conditions.  Concerted conduct may not be protected if it is violent, unlawful, in violation of the collective bargaining agreement, or “indefensibly disloyal.”

Social Media: National Labor Relations Act  Recent NLRB Complaint  Employees fired after posting negative comments about supervisor on Facebook.  Posting was protected concerted activity.  Broad prohibition on posting disparaging remarks about company or supervisor interfered with employees’ rights.

Social Media: Off Duty Conduct  Can an employer take action based on off-duty conduct on social networking sites?  Constitutional protections of speech  Matter of public interest  Union employees  Just cause to terminate or discipline  State law protecting off-duty conduct  Some states (including CA, CO, CT, NY, MT, ND) protect employees from adverse actions based on their lawful off-duty activities.  Put employees on notice that personal social networking can violate employer policies

Social Media: Policy Considerations and Recommendations  Even if employers do not permit social networking at work, employers should:  Have policies prohibiting posting anything on blogs or social networking sites that can be construed as harassment, discrimination, or threatening to co-workers or customers.  Inform employees that their use of company computers may be monitored and that employees have no expectation of privacy when using company’s computer systems.  Never use “espionage” or similar means to obtain passwords or access to secure sites.

Social Media: Policy Considerations and Recommendations  Employers also should:  Prohibit commenting about or disclosing confidential company or business information, like customers information or client lists.  Prohibit use of employer logos/brands/uniforms without authorization.  Remind employees that all other company policies still apply when using company computers.  Adopt a consistent practice on disciplining employees for violations of policy and inform employees they may be disciplined and even discharged for violations.

Social Media: Policy Considerations and Recommendations  If employers permit social networking at work, employers should consider:  Providing guidance on appropriate activities and train on proper social networking and risks to business of improper social networking.  Requiring employees to maintain separate personal and business accounts and prohibit “friending” of customers on personal accounts.  Requiring employees to set security settings on business accounts so that “friends” and “contacts” cannot be viewed by others.  Requiring employees to be truthful and use common sense when posting on social networking sites.

Social Media: Policy Considerations and Recommendations  Employers also should consider:  Discussing use of social networking sites in confidentiality and non-disclosure policies and agreements.  Prohibiting employees from posting anonymously.  Requiring employees to obtain permission to speak on behalf of the company.  Requiring employees to otherwise avoid suggesting he or she is speaking on behalf of the company.

Social Media: Policy Considerations and Recommendations  If employers use the Internet or social networking to screen applicants:  Have a person other than decision maker do the search and only report relevant findings (not protected characteristics).  Conduct social media check after interview.  All candidates subject to same checks at same point in process.  Document reason for rejecting candidate based on check.

Attorney Ethics Issues  Social networks are a valuable professional development tool for attorneys.  But risk of ethics violations abound.  These risks are uniquely challenging, as states’ rules of professional conduct are slow to tailor new rules to social media.

Attorney Ethics Issues – Attorney Advertisement  Attorney Advertisement: Depending on its content, your social media page may be considered an attorney advertisement.  The testimonial feature on LinkedIn may result in violations of many states’ rules of professional conduct.  Bending the truth regarding representative experience or claiming certain expertise may be an ethics violation in your state.

Attorney Ethics Issues – Improper Communication  Social media communications with judges, other parties, opposing counsel, and witnesses may give rise to ethics violations.  Investigating judges or adversaries by, for example, friending them on Facebook may be considered an improper communication.

Attorney Ethics Issues – Prudent Policies  Establish disclaimers in accordance with your jurisdiction’s rules of professional conduct.  Respond to requests for legal advice privately, as you would if you received an unsolicited message from a potential client.  Disable all features which may allow for testimonials.  Treat social media like you treat your telephone: If you would not call someone because of ethical concerns, do not contact them via social media.