Social Media and Technology in the Workplace.ppt

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Social Media and Technology in the Workplace.ppt Powered By Docstoc
					                      Social Media and
                      Technology in the
                         Workplace

The material provided herein is for informational purposes
    only and is not intended as legal advice or counsel.
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seminar                          2
Charlie Bit My Finger




                        3
 What is Social Networking?
• FACEBOOK
• YOUTUBE
  – Video sharing network
• Twitter – “Tweeting”
• LinkedIn
  – Focus on professional networking
• MYSPACE
  – Estimated over 100 million members
• Blogging
                                         4
           Facebook
• 600 million active users
• 8 new members per second
• 3 billion photos each month
• 50% of users log in everyday
• 60 million status updates per day
• Users average an hour a day on
  Facebook
                                      5
              YouTube
• 35 hours of video added per minute
  – 50,000 hours per day

                Twitter
• 2010
  – 25 billion tweets
  – 100 million new users
                                       6
   Social Media/Technology
• Every aspect of the workplace has been
  affected
  – Hiring: Can employees use social media for
    background checks
  – Employee misconduct
     • Sharing confidential information
     • Harassment
     • Off-duty conduct
  – Protected Employee Activity
     • Privacy issues
     • Concerted activity
                                                 7
 Effectively Using Social
Media in the Hiring Process
         Presented by:
         Keya Denner
Screening With Social Media:
    Everyone Is Doing It
• Microsoft recently released research results
  (January 2010) showing that 79% of the
  surveyed hiring managers and recruiters in
  the U.S. had considered online information
  about job applicants as part of the hiring
  process
• Of those who considered online information,
  70% said they have rejected candidates
  because of what they found                   9
 Screening Candidates – Why
      Use Social Media?
• Get information straight from the source
  – Pictures
  – Profile
  – Comments and background information
• Identify misrepresentations
• Free and easy
• Avoid claims down the road such as
  negligent hiring?
                                          10
     Screening Candidates:
          Is It Legal?
• Example
  – XYZ Corporation searches all of its
    potential candidates on the internet prior
    to bringing the individuals in for an
    interview. This includes reviewing an
    individual’s Myspace and/or Facebook
    pages.
  – Is this legal? Is it advisable??

                                                 11
  Screening Area of Concern:
            FCRA
• Fair Credit Reporting Act
  – Requires authorization and disclosure to
    applicant prior to using third party to obtain
    background information
• June, 2011: FTC approves practices of
  Social Intelligence Corp.
  – New online background check company
  – Retains information in file for 7 years      12
   Screening Area of Concern:
        Protected Status
• Information can illegally “screen” an
  applicant out
• Impermissible access to “Protected
  Status” of applicant




                                          13
What Is a Protected Status?
–   Race              –   Age
–   Color             –   Disability
–   Gender            –   Sexual Orientation
–   National Origin   –   Marital Status
–   Religion          –   Genetic
                          Information


                                          14
   Screening Area of Concern:
     Discrimination Claims
• Potentially dangerous for employers to
  be aware of this information
  – E.g. Discrimination Claims
    • Failure to Hire
    • Disparate Impact Claims
    • Claims by Existing Employees (e.g., disability
      discrimination—imputes knowledge of medical
      condition)
• Knowledge may be seen as basis for
  adverse employment action                        15
   Screening Area of Concern:
   Lawful Off-Duty Conduct
• Lawful Off-Duty Conduct
  – Many states have enacted statutes which
    prohibit an employer from disciplining an
    employee for engaging in lawful conduct
    while away from the employer's premises
  – New Jersey: only certain types of off-duty
    conduct, such as smoking and drinking
  – New York: much broader protection
                                                 16
  Lawful Off-Duty Conduct
• Know your state’s law!
• Courts usually allow broad discretion
  where the employer can show that the
  off-duty conduct has damaged the
  business, hurt the employer's interests,
  or is otherwise inconsistent with the
  employer's business needs
  – Can you prove a direct link between the
    conduct and the applicant’s job
    requirements?                             17
    Screening Area of Concern:
              GINA
• GINA (the Genetic Information
  Nondiscrimination Act of 2009)
• Makes illegal the mere acquisition of
  genetic information, which is defined
  broadly to include, among other things,
  information about manifested diseases
  of family members
                                        18
 Screening Area of Concern:
           GINA
• How does GINA impact the hiring
  process?
  – Employers must not discriminate in terms
    and conditions of employment based on
    genetic information
    • For example, an employer must not deny a job
      to someone because he or she has a family
      history of cancer
                                                 19
Social Networking – GINA’s
Publicly Available Exception
• What if you inadvertently discover a job
  applicant’s genetic information?
  – Social networking websites (or blogs, etc.)
    fit under GINA’s publicly available
    exception if access to the website does not
    require permission of an individual or is
    not limited to individuals in a particular
    group
                                                  20
Publicly Available Exception:
      Limited Access?
• Is Access Limited?
  – An employer who requires all applicants to grant
    the employer access to protected Facebook pages
    (i.e., required the applicant’s permission to access)
    would not be able to take advantage of this
    exception if it acquired genetic information
  – However, the exception would apply to an
    employer who learned genetic information about
    an applicant as the result of a general internet
    search for information about the applicant
                                                       21
 Publicly Available Exception:
    Active v. Inadvertent
• Active search v. Inadvertent discovery
  – GINA’s publicly available exception was
    intended to protect an entity that
    inadvertently obtains genetic information and
    not an entity that is actively searching for
    genetic information.


                                              22
   GINA – Lessons Learned
• Tip: Don’t actively search for
  candidate’s genetic information on the
  web!
• Tip: Like any other protected class, be
  cognizant of suspicious timing and
  mindful that documentation regarding
  any legitimate performance issues is
  recommended before making any
  adverse hiring decision                 23
Screening - Recommendations
• Pre-interview – NEVER!!!
  – Review social media sites only after
    interviewing candidate and only if
    interested in candidate
• Post-interview – WITH CAUTION
  – Be consistent:
     • Use of social media should be done above
       board, without any misrepresentations, and
       consistently for each and every job candidate
                                                       24
Screening - Recommendations
• Document what is considered (and,
  therefore, what is not)
• Verify!
  – If from 3rd party site
  – HR should perform this function (as
    integrated part of background check
    process)
  – Prohibit hiring managers from performing
    function independently
• WRITTEN POLICY?                          25
              References
• The New Paradigm: Casual references
  on LinkedIn and other networking sites
• Risks:
  – Defamation (if negative or untrue)
  – Misrepresentation



                                         26
              References
• Guidance
  – Supervisors: “No reference” rule applies to
    social media  refer to HR!
  – Human Resources: Be aware of the danger
    in relying upon informal social media
    references


                                              27
iPhone Screenshots




                     28
           DOL - Timesheet
• Available in English and Spanish
• “a timesheet to help employees independently track
  the hours they work and determine the wages they
  are owed.”
• “THE NEW TECHNOLOGY IS SIGNIFICANT
  BECAUSE, INSTEAD OF RELYING ON THEIR
  EMPLOYERS’ RECORDS, WORKERS CAN NOW
  KEEP THEIR OWN RECORDS.”
• Tracks hours, meals and break times

                                                       29
         Concerted Activity
• Section 7 of the National Labor Relations Act:
  – “Employees shall have the right to self-
    organization, to form, join or assist labor
    organizations, to bargain collectively through
    representatives of their own choosing, and to
    engage in other concerted activities for the
    purpose of collective bargaining or other mutual
    aid or protection, and shall also have the right to
    refrain from any or all of such activities…”


                                                          30
          Concerted Activity
• October 2010 NLRB complaint against
  American Medical Response
• Fined employee for violating employee
  handbook
  – Cannot depict the company “in any way” on Internet
  – Prohibits “disparaging or discriminating remarks
    when discussing the company or the employee’s
    supervisors, co-workers and/or competitors
• Employee criticized supervisor on Facebook
  because he refused to allow her to get help from
  her Union in responding to custom complaint
                                                   31
       Concerted Activity
• NLRB Complaint Alleged
  – Section 7 rights violated by handbook
    policies
  – Policies overbroad and inappropriately
    limits employees in discussing working
    conditions
• Reuters Twitter Case
• Arizona Daily Star Twitter Case
                                             32
 Monitoring and Regulating
Social Media in the Workplace
          Presented by:
           Chris Elko
       The Legal Land Mines of
            Social Media
•   Posting Harassing Comments about Co-Workers
•   Inconsistent Discipline/Supervision
•   Unfair Labor Charges
•   Defamation
•   Privacy rights



                                             34
Headline: Social Media Specialist
       Fired Over Tweet
• “We start summer hours today. That means
  most of the staff leave at noon, many hit the
  links. Do you observe summer hours? What do
  you do?”
• Specialist terminated
  – It was sent from the organization’s office Twitter
    account
  – The organization partly funded by tax dollars
• Social Media used in lieu of casual conversation
  – For Employers, casual = dangerous                    35
             Crossing the Line
Pietrylo v. Houston’s Restaurant
• Server fired for statements made on personal MySpace
  account
• Account created to “talk about all the crap/drama/and
  gossip occurring in our workplace, without having to
  worry about outside eyes prying in”
• Access by “invitation only” and given to select
  coworkers
• Coworker with access, either voluntarily or through
  coercion, gave login information to senior mangers who
  later accessed the forum
                                                      36
            Crossing the Line
Pietrylo v. Houston’s Restaurant (continued)
      • Unrestricted and readily available content found
        on blogs and public social networking profiles
        continues to be fair game
      • However, restrictions on access may curb
        employers’ abilities to use information and
        subject employers to unintended violations of
        law


                                                        37
To “Friend” or Not to “Friend”
• Supervisors “friending” subordinates
  – Another layer of supervision?
  – Another way to incur liability!
• No policy against “friending” employees,
  but is it a good idea?



                                         38
         Remember…
     Employers
get in trouble for
what they DON’T
         do.
As a Supervisor,
 you have a duty
       to act.
                     39
   You look at your employee’s
      profile and you see…
• An employee is harassing another employee on
  Facebook
   – Does your Policy require supervisors to report
     harassing behavior
      •Even if an employee says “please don’t say
       anything”
• What if you don’t see the harassing content?
   – Can knowledge of harassment be imputed on
     you?
                                                 40
You look at your employee’s
   profile and you see…
• That your employee is participating in a
  Susan G. Komen Race for the Cure on
  behalf of her mother.
  – Does simply knowing this information
    violate the law?
  – How can this information hurt a
    supervisor?
  – Gina Violations? Spreading information?
                                              41
 You look at your employee’s
    profile and you see…
• Your employees are trashing you and/or
  the Company!
  – Step No. 1 – Cool down!
• What does your policy say?
• Avoid “retaliation”
  – FMLA, ADA, Title VII, OSHA and the
    NLRA all prohibit retaliation!
                                         42
          Case Law Update
• Knauz
  – BMW salesman complained on Facebook about
    the food and drinks served to customers as part of
    a promotion
     • Stated that it inhibited his commissions
• Hispanics United
  – Employee posted comments criticizing fellow
    employees
     • When employees responded, they were terminated for
       harassment
     • Protected Conduct!
                                                            43
             LinkedIn
• Can a positive “Recommendation”
  prevent you from terminating an
  employee?
• Can a Professional’s LinkedIn account
  violate a No-Solicit Agreement?



                                     44
          Confidentiality
• Are you waiving/violating a privilege?
  – Attorney client
  – Doctor patient
• HIPAA
  – Nurses fired for facebook postings



                                         45
    Other Important Issues
• Doe v. XYC Corp.,       • Discovery
  (2005)                    – PA: McMillen
  – 3rd Party Liability        • No expectation of
    when an Employer is          privacy for Facebook
                                 or MySpace accounts
    on notice of
    pornographic use        – NY: Romano
                               • “Think before you
  – Policies must be             speak, or in this case,
    enforced!                    before you type.”


                                                       46
     Product Endorsements
• Estimated that 2 million local businesses
  have Facebook pages
• Top Businesses on Facebook
  1. Coca Cola    31,700,000 fans   53,000 per day
  2. Starbucks    23,500,000 fans   20,000 per day
  3. Oreo         21,800,000 fans   29,000 per day
  4. Red Bull     21,000,000 fans   18,700 per day

                                                     47
  FTC Guidelines on Product
       Endorsement
• What does it mean for employers?
   – Liability for false or unsubstantiated statements about your
     company’s services or products that are made by your
     employees on blogs or social networking sites
• Duty to Disclose?
   – Employees who endorse their employer’s products have a duty
     to disclose the employment relationship at the time of the
     endorsement or testimonial … even when it is posted on a site
     that is NOT maintained by the employer

   http://www.ftc.gov/os/2009/10/091005revisedendorsementguides.pdf

                                                                    48
                 FTC Guidance
• Reverb Communications – public relations/marketing
  firms for video game developers
• Had employees write positive reviews on iTunes
  about its clients apps
• Employees did not disclose relationship between
  employees/Reverb and app developer
• Consent Order
   – Remove reviews from iTunes
   – Refrain from misrepresenting “the status of any user of
     endorser of a product or service, including but not limited to,
     misrepresenting that the user or endorser is an independent
     user or ordinary consumer of the product or service.”
                                                                   49
Technology Policy
      Presented By:
    Annmarie Simeone
      Why Do You Need A
      Technology Policy?
• Avoid “practice” becoming your policy
• Protect your business
  – (IP, Security, Confidential Information,
    Marketing)




                                               51
     Why Do You Need A
     Technology Policy?
• Positive promotion of your
  company
• Discipline and Termination



                               52
     Why Do You Need A
     Technology Policy?
• Avoid wasted time and resources
• Litigation/Compliance Strategies




                                     53
  Best Practices And Strategy For
Preparation of Technology Policies
 • Determine the Company’s past and current practice(s)
 • Talk to IT, Managers, outside consultants to give input
   on the above
 • Interview your employees
 • Any industry-specific requirements for records
   maintenance or other compliance issues?
 • Talking to teams or individuals who use technology
   everyday can help the company figure out the type of
   policy provisions needed
 • Same as to your employees. What do they use
   technology for? How often? What are their needs?
   What are their “wants”?                               54
  Best Practices And Strategy For
Preparation of Technology Policies
  • Consult with Counsel
  • Draft, review, revise, refine
  • Distribute
  • Obtain signed Acknowledgements
  • Training (particularly managers)
  • Enforcement
                                       55
 What Will Your Technology
     Policy Apply To?
• Present guidelines and rules for use of:
   –   Voicemail
   –   Computers
   –   E-mail/Instant Messaging
   –   Internet
   –   Social Media
• Potential other areas:
   – Cell phones
   – Laptops, PDAs, remote access
   – Cameras/Camera Phone/Recording
                                             56
        Critical Underlying
             Principles:
• Technology is Company property
• Employee has no expectation of privacy in
  using Company property
• Monitoring
• Discipline
• Disclose nature of data and communications
  that will be accessible to the company (the
  Stengart issue)                             57
 Key Elements Of Technology
           Policy
• Create “sample” lists of permitted uses and
  prohibited uses of technology (not all-inclusive)
  – Sets expectations; on notice
  – Clearly explains the rules of the game
  – Alerts employees of possibly unknown risks to
    Company and employee
  – Lays groundwork for discipline
  BUT NOTE: that nothing in the technology
  policy limits or changes the employer’s at-will
  employment policy                               58
Key Elements Of Technology
          Policy
• Technology is provided for business use
• Do you want to prohibit all personal
  use? Or have limited, partial access or
  unlimited personal use?
• Prohibit social networking during work
  hours, unless for employer/business
  purposes (LinkedIn)
                                        59
Key Elements Of Technology
          Policy
• Statement that all Company policies
  apply equally to use of Company
  technology
• Protect confidential and proprietary
  information


                                         60
    Key Elements Of Technology
              Policy
Other “content” rules/”netiquette”
•   Be professional
•   Avoid abbreviations
•   Act as if this is a traditional hard copy communication
•   Manage your tone (use of emoticons, capitalization)
•   Always spell check and proofread
•   Use an appropriate subject line description
•   Be mindful of your audience
•   Only “cc” as needed
•   Don’t overuse the “urgent” tag
                                                          61
Key Elements Of Technology
          Policy
• Guidelines prohibiting sites and
  overuse of technology which can slow
  down the computer system/internet
• Use of web-based e-mail accounts for
  work purposes, on Company
  equipment, through Company servers

                                         62
  Key Elements Of Technology
            Policy
• There are certain guidelines well suited
  particularly for social media:
  – Employee is personally responsible for what he/she
    posts
  – Employee must state that he/she is not speaking for
    the employer in personal social networking
  – If employee posts about Company or it’s
    products/services, he/she should state that he/she is
    a Company employee

                                                       63
Key Elements Of Technology
          Policy
• Comply with intellectual property rights and
  all laws, including copyright laws
• Do not use Company logos or trademarks
  without written permission
• Postings must not violate Company’s policies,
  including Code of Conduct
• Honor netiquette rules
• “Friending” with subordinates or HR
                                             64
          Other Considerations:
• Issue and enforce policy prohibiting derogatory,
  defamatory or disparaging communications about
  the Company or the employees, but include a
  “disclaimer” (nothing in the policy is intended to
  violate any rights protected by law, including right
  to engage in concerted activity)
• “Disparagement” may be protected
   –   State law – lawful off-duty conduct
   –   Federal Constitutional Law
   –   NLRA; CBAs
   –   Whistleblower laws
   –   EEO laws against retaliation
                                                    65
  Distribute Policy and Train
          Employees
• Distribute policy (revised handbook or
  stand alone)
• Obtain signed acknowledgement
• Train employees



                                           66
               Training
• All employees
• Special provisions for management
• Review all provisions of policy in detail
• Explain risks to company and to the
  employee (disclosure, confidentiality,
  federal and state laws)

                                          67
               Training
• Disengaging from “a battle”
  – Maintain professional tone
  – Don’t use angry “CAPS” or emoticons or
    exclamation points
  – Treat complaints as you would if you
    received in hard copy
  – Protect confidentiality; remember HIPAA
    concerns

                                              68
              Training
• Avoid potentially informal
  “evaluations” or “glowing” e-mails as
  they may contradict formal review
• What you share doesn’t disappear. No
  true “delete” button and the Internet
  has a long memory.
• Practice what you preach
                                          69
Summary - These Are The Important
Takeaways About Your Technology
            Policies:
 Implement and enforce an appropriate technology
  policy.
 Insure policy is broad enough to cover ever-evolving
  technology and update as needed
 Use the policy to protect your Company and its assets
 Use the policy to set clear expectations for employees
  consistent with the law and company culture and needs
 Get acknowledgements
 Reinforce at-will employment policy
 Conduct training
                                                      70
Question & Answer Session

       Thank you for coming!

				
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