1. SOCIAL MEDIA IN THE WORKPLACE
PRESENTED BY
Tevis Marshall
Troutman Sanders LLP
Troutman Sanders Building
1001 Haxall Point
Richmond, Virginia 23219

2. To tweet, or not to tweet…?
Social Media in the Workplace
To tweet, or not to tweet…?

3. Social Networking Facts
35% of adults have profiles on social networking sites.
Adults are growing much faster than the percentage of teens.

4. Are Employers Using Social Media to Snoop?
Yes! 45% of employers use social networking sites to screen potential employees
29 % use Facebook, 26 % use LinkedIn and 21 % use MySpace. 11% search blogs while 7 % follow candidates on Twitter

5. IMPACT ON EMPLOYERS How does social networking affect the
employee/employer relationship?
Pre-employment screening
Risks associated with employees’ use of social networking during employment
Disciplining employees for use of social networking

6. Pre-Employment Screening
Risks associated with using social and business networking sites, personal websites, and blogs as part of the hiring process:
Learning “Off-Limits” Information about Candidates:
Age
Race
National Origin
Religion
Medical Conditions
Pregnancy Status
Marital Status
Political Affiliations

7. Pre-Employment Screening
Some additional risks during the hiring process:
Disparate use among candidates
Off-duty conduct / lifestyle statutes
Fair Credit Reporting Act
Accuracy

8. Pre-Employment Screening – Practical Tips
Practical tips when using social and business networking sites, personal websites, and blogs as part of the hiring process:
Address in company policies and training
Use equally among candidates
Avoid decision maker involvement in process
Be skeptical of accuracy and aware of context
Obtain candidate’s consent

9. Potential Concerns With Employee Use of Social Networking Sites
Hypothetical – You employ Cathy as a sales representative. She calls on all of your best accounts and knows all of the key people at your clients’ locations. Cathy creates a LinkedIn account and has over 300 “connections” that are visible on her home page.
Any problems with this??

10. Potential Concerns With Employee Use of Social Networking Sites
Does your company claim that its customer lists are trade secrets?
Does it intend to protect this kind of information?
Does Cathy have a Confidentiality / Nondisclosure Agreement? Is this a violation?
Can your competitors access all of Cathy’s best contacts? Do you want them to?!

11. Potential Concerns With Employee Use of Social Networking Sites
Hypothetical – You are John’s manager for the next 3 months at a very large company. Employees, like John, often work in different divisions during the year and can have several interim managers. John does an OK job for you, but clearly had some performance issues and was absent a lot.
You receive an from John’s LinkedIn account asking for a recommendation that will be posted to his account. You don’t really want to respond, but you don’t want to be rude. You write a quick comment for John:
“John did a really great job for me!”

13. Providing Recommendations for Employees
Any problems with this?
What if John is terminated one week later for performance related issues, but then sues the company for discrimination?
Does your company policy address this kind of “informal” recommendation?
Should they be allowed?

14. Case Example – Privacy Concerns
Pietrylo, et al. v. Hillstone Restaurant Group d/b/a Houston’s

15. Employees Create a Website
An employee designed a MySpace page purportedly for “s**t talking” and “to talk about all the crap/drama/and gossip occurring in our workplace, without having to worry about outside eyes prying in…”
The employee invited other employees to join and only those invited could view the page and see postings.
Postings included derogatory and sexual remarks about managers.

16. Management Discovers Page
An employee who was a member of the group showed her manager the postings while dining at manager’s home. Word spreads, another manager requests employee’s password in order to engage in “cyber snooping.”
Employer found website disturbing and its contents both vulgar and offensive. The employee and his girlfriend were terminated.

17. The Verdict
A jury found that managers violated state and federal laws that protect the privacy of web-based communications
Employees were awarded $3,400 in back pay and $13,600 in punitive damages

18. Potential Concerns With Employee Use of Social Networking Sites
Hypothetical – You still employ Cathy as a sales representative. She has a Facebook page and is “friends” with several of her co-workers, including John. John is always the first to comment on Cathy’s new pictures, but she notices that his comments are becoming more frequent. Over the weekend, Cathy posts pictures from a recent beach trip (including pictures of her in a bathing suit). During that same weekend, John indicates that he likes her pictures…
…BUT, he gives her a “thumbs up” 40 separate times.
…CREEPY, right??

19. Potential Concerns With Employee Use of Social Networking Sites
Is this harassment?
What should you do if Cathy reports this conduct? Remember, this did not happen during working hours.
What should you do if you are Cathy’s supervisor and are also friends with her on Facebook and happen to see John’s comments?

20. Potential Concerns With Employee Use of Social Networking Sites
Hypothetical – Mike is connected to his boss on LinkedIn and posts the following update:
“I just turned 60 and I really feel as if my employer is only hiring and promoting younger workers. In fact, I feel like I am often made fun of and treated harshly because of my age now! Can anyone offer advice on how to handle this??”
One week later, Mike is fired for performance-related
issues.

21. Potential Concerns With Employee Use of Social Networking Sites
Any problems with this?
If you are Mike’s boss, what should you have done?
Are your supervisors restricted in their social networking activities with subordinates? Should they be?
Do you monitor employees’ comments on websites like this? If so, are these comments taken into consideration prior to taking adverse action?

22. Potential Concerns With Employee Use of Social Networking Sites
Hypothetical – An employee “tweets” the following on her Twitter page:
“We just closed a big deal with Company X, and I’ll tell you one thing…..they acted in a truly unprofessional manner! In fact, they must be ‘cooking the books’ in order to make this deal work….”

23. Potential Concerns With Employee Use of Social Networking Sites
Any problems with this?
Is this defamatory?
Who will be liable? The employee….or the company?
Do you monitor employees’ comments on websites like this? Is the discussion of company business on personal websites addressed in your company handbook?

24. Drafting Effective Policies
Should supervisors be allowed to “friend” subordinates?
No disclosure of confidential or proprietary information.
No postings that appear to speak “on behalf” of the company without prior authorization.
Expectation of professionalism outside of the company…but beware of “off duty conduct” laws.

25. Drafting Effective Policies
Be sure that your anti-harassment policy applies to internet postings.
Disparagement of the company, its clients, and employees is prohibited.
No posting of pictures of the company, its logo, its clients, or its employees without prior permission.
No expectation of privacy in any postings made using company-owned equipment.

26. QUESTIONS?