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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. Please help yourself to food and drinks Please let us know if the room temperature is too hot or cold Bathrooms are located past the reception desk on the right Please turn OFF your cell phones Please complete and return surveys at the end of the 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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