Social Media Audit: Labor, Advertising and Corporate Law

2 Panel Michelle Tori Sherman Silas

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4 Employer Access to Employee Social Media: Some Bright Lines  Pre-screening job applicants  Monitoring social media activity  “Friending” employees

5 Pre-screening job applicants: Dos and Don’ts  Do consider social media activity  Do follow FCRA rules if using an outside vendor  Do have an internal procedure for the pre-screen

6 Pre-screening job applicants: Dos and Don’ts  Don’t ask for login/password  Don’t have decision makers doing the pre-screen  Don’t make employment decisions based on protected factors

7 Monitoring social media activity:  Keep to the public pages  Don’t view “private” activity on employee’s open page at work  Be consistent in how you respond to social media activity  Be mindful of protected factors

8 “Friending” Employees:  Risk of Title VII and related state law claims  Risk of harassment claims  Address in state mandated sexual harassment trainings

9 Social Media Policies: Dos and Don’ts  Do have a social media policy  Do include in onboard training  Do build flexibility into it  Do update it

10 Social Media Policies: Don’ts  Don’t try and prohibit “water cooler” conversations  Don’t try and prohibit Sec. 7, NLRA related posts  Don’t use vague and overbroad terms without specific examples

11 Other Social Media Policies and Agreements:  Vendor agreements  Social media handler agreements  Franchisee and other independent contractor agreements

12 Marketing and Social Media  Rules are the Same in Social Media as Traditional Media FTC Act - FTC.com Disclosures State Consumer Laws State Data Privacy & Security Laws

13 Legal Pitfalls when Advertising on Social Media  Trademark & Copyright Issues User Generated Content Right of Publicity

14 Legal Pitfalls when Advertising on Social Media  Sweepstakes, Contests & Other Promotions  Endorsements & Testimonials in Social Media

15 Managing compliance with social media platform terms  Periodic audit for updates  Messaging to Marketing Departments  “Publisher” Liability

16 The Social CEO  Stories from the headlines  Reg FD/FTC issues  Avoid “Sock-Puppeting”  Proactive fixes:  Briefings by investor relations; social media lead; legal  Monitor social media activity

17 Litigation and E-Discovery Issues:  ESI – treated the same  Discoverable  Include in litigation hold  Include in discovery plan  Don’t assume outside counsel is fluent in social media

18 Litigation and E-Discovery Issues:  Follow ethics rules – no ex parte communications  Avoid overbroad requests  Anticipate filing discovery motion  Send preservation letter  Do informal discovery of public information

19 Due Diligence for M&A Deals  How is the target company managing its social media  Know litigation exposure: astroturfing, copyright infringement, right of publicity  Ownership of social media accounts

20 Takeaways  Implement Safeguards & Policies  Balance business interest/objectives with risks

21 Takeaways  Conduct Audits  Respect Privacy  Be aware of regulatory scrutiny

22 Contact Information Michelle Sherman Sr. Corporate Counsel - Litigation Corporate Legal Department Farmers Group, Inc Owensmouth Ave., 3rd Floor Woodland Hills, CA (818) Tori M. Silas Privacy Officer & Senior Counsel, New Media and Transactions Cox Enterprises, Inc Peachtree Dunwoody Rd. Atlanta, GA (678)