Benefits) and How
to Deal with Them
LITTLER MENDELSON, P.C.
What’s out there?
It’s not just Facebook, LinkedIn, MySpace and
There are several hundred social networking sites
From the good (CaringBridge, WiserEarth,
Disaboom) to the iffy (deviantART, Sadofacebook
Employees can have fun all day long without
leaving their computers
Not my employees!
Oh, yes they are
Unless you ban them
But should you ban them? Or even control
And can they be a problem at home too?
September 13, 2010
Users Spend More Time on
Facebook Than Google!
“Users spend more time on Facebook than Google says the analyst
firm ComScore. According to the American Institute, the time spent
by Internet users on the social network is greater than that spent on
Google. And this concerns not only the search engine, but also
other services from Mountain View: YouTube, Gmail, or Google
Source: From the online article: Facebook VS Google:Who Will be Number One? Analysts Report on the
website www.news-live.net ● Posted September 13, 2010 by Anju Nagpal.
A Few Stats for You
The Twitter community grew 1382% from 2/08-2/09, by 2010 – over 105
billion (300,000 new members every day)
The largest age group on Twitter is 35-49; Facebook’s biggest age group
has moved from 18-24 to 35-44
More Twitterers use it at work than at home
There are more than 600 million Facebook users – half are active on a
20+ billion minutes a day are spent on Facebook (700 billion minutes per
3 billion photos and 14 million videos placed on Facebook each month
Not just for the young: in January 2009, there were over 1 million
Facebook users age 55 or older, by January 2011, there were over 10
Common Sense Concerns
Let’s assume that LinkedIn has a business
Twitter versus Facebook as a social concept
The difference may be more psychology
Work wise, Facebook can be a time waster
But Twitter can be a quick disaster
Reasons for Concerns
July 2009 independent study shows 1.5% loss of total
employment productivity because of social networking sites
77% of regular Facebook users log in at work
Some employees spend two hours per day at work on
Facebook, though average is 15-20 minutes in work day
Some employees log in only at work and not at home!
87% of those polled could not identify a single business
purpose of Facebook activities
And Who’s Winning the Battle
60% of managers say they have the right to know
how employees represent themselves and their
employers on social networking sites
53% of employees say managers have no business
in what the employees do and say on social
Currently, only 17% of employers try to track
49% of employees say they won’t change their
behavior even if employer tracks
A Few Employer ABCs
Employers need a policy – two years ago, few employers did –
now about half have one
Employers need to deal with reality – common sense expectations
Employers need to focus on appropriateness – this is work, after
And now employers need to start thinking about legal nuances as
well as the fact that the law always lags behind technology, and
that can create some real problems
Ten Social Networking Scenarios that
Can Lead to Disaster or Benefit
Five problems to consider regarding social
Three benefits of social networking for you
Two other uses for you to consider – each
presents challenges and has rewards
Problem 1 – Employee Bad
This is the problem we most expected most
Harassment, political insensitivity and just
Legally, this may not be anything new, but
employers have to be ready to deal with the
A few examples for you
Harassment and Social
Blakey v. Continental Airlines – female pilot harassed by male
“If the porn bothers you, don’t look” and “Now don’t start your
feminazi routine with me”
NJ Supreme Court held no duty to monitor employees activity
on social networking sites but sexual harassment can arise
from social networking circumstances
Not really a change of law – with co-workers, knew or should
have known and did you adequately respond
Manager-initiated harassment on social networking site would
be more problematic – Faragher defense could become huge
since discovery of the issue may be difficult
“I’m excited about going to work and paying higher taxes (since I’m
educated and successful) so all you lazy ass, hands held out, welfare
wantin’, black ghetto ebonics talkin’ white trash, screwed up tree
hugging environmentalist pieces of trash, don’t have to. . . .
Because a man can read off a teleprompter smoothly, has black skin
and promises to make everyone’s life easier, this somehow qualifies
him to be Commander in Chief? . . . I’d like to shake the hand of
whoever (not me) eventually ASSASSINATES Barack Hussein
Obama.” (Posted November 2008)
So what do you do with this Chief Office Administrator? This wasn’t
done at work, but is a quote from her MySpace page. She said she
was only kidding.
Just Plain Stupidity
“I will destroy Springfield. No 1 here got guns like me.”
“White Pride, World Wide.”
“LETS KILL PEOPLE.”
Accompanied by pictures of himself with an AK47.
Posted on Facebook by an hourly employee in Pennsylvania.
He said he was drunk and he didn’t mean it. What do you do
What if he was a California employee?
What if he was union-represented – do you win the arbitration?
Protections for Lawful Off-Duty
33 states protect employees against adverse action based
on some form of lawful, off-duty conduct...
– Political Activity: All states except AL, AR, GA, HI, IA, ID, IL, KS,
ME, MN, MT, NC, ND, NH, OK, VA, VT, WI
– Consumption of Lawful Products: IL, MN, MT, NC, NV, NY, WI
– Smoking/Tobacco Use: CT, DC, IN, KY, LA, ME, MS, NH, NJ,
NM, OK, OR, RI, SC, SD, TN, WV, WY
– Lawful Off-Duty Conduct: CA, CO, ND, NY
– First Amendment: CT
Problem 2 - References
What’s the average employer’s policy on
What do people do on LinkedIn?
Should employers prohibit that practice by
Problem 3 – for Healthcare
Healthcare workers from numerous hospitals in Chicago
created a Facebook group
The group was entitled “Do you know this alcoholic Indian?”
The individual was a transient alcoholic who often frequented
ERs – he was described on Facebook by name, among other
The guy was so well known that the Facebook group had 600
members, who posted pictures of the guy, commented on his
medical forays and offered numerous opinions about him
(including medical comments)
Just good fun or a serious HIPAA violation?
Problem 4 – Confidentiality and
Solicitation of Employees
Twitter case – HR employee tweets of the
upcoming RIF that she is partially in charge of
Facebook case – Employee who realizes he is
about to be fired takes camera phone pictures of
confidential documents, then posts them openly
LinkedIn case – Management employees recruiting
competitor employees through LinkedIn
Violations of law? Could these things have been
Problem 5 – Spokesperson Issues
Employees comment on Facebook or a blog about what their
company’s product can do. Some statements are at least arguably
misleading and exaggerated. Employees state in their comments
that they work for the company that made the product.
Is this a legal problem?
The FTC says it is – it can violate the rules regarding “the use of
endorsements and testimonials in advertising”
What can employers do to prevent this issue?
Do employer policies address this concern? If not, they should.
Why should you support social
networking at work?
Done correctly, it is a benefit rather than a
But some businesses are missing that boat –
according to a recent Siemens-commissioned
study, 70% of consumers want to interact with
companies through social media, but only 30% of
companies are really doing that well
Remember – Facebook is the 2nd or 3rd most used
website in America – behind Google and Yahoo
EMPLOYERS – DON’T BE LIKE THIS!!!
Benefit 1 - Marketing
I interact daily on Facebook with Coca-Cola,
Einstein Brothers, M&Ms, the Atlanta Thrashers,
Buckhead Life Restaurants, the Jazz Education
Network and Jeep – should I be interacting with
Maybe this isn’t a lawyer’s issue per se, but there
are rules that apply and those need to be measured
against the great benefits to be had
Don’t be a business naysayer – apply the law but
be smart about social media marketing
Benefit 2 - Recruiting
Facebook is the fastest growing source for
For employers, why wouldn’t you use it? (The
answer may depend on what job you’re trying to
Worried about improper use? Has that ever
stopped an otherwise good practice in the past?
Work with it, don’t ban it
Benefit 3 – Shared Knowledge
The average lawyer’s reaction to the idea of
internal social networking is not good
The right reaction to the idea of internal social
networking should be positive
The value of shared knowledge
Particularly in multi-state and multi-national
Work with it, don’t ban it
as a Business Tool
69% of businesses allow employees
to use social media at work
– Up from 37% in 2007
75% of employees are using social
media, such as FaceBook and Linked
In, for business purposes
– Up from 15% in 2007
63% of businesses are using social
media to build and promote their brand
Awareness, Inc. Report (Sept. 2008)
as a Business Tool
6% of employers reported using internal-facing communities
33% of employers stated that their organization plans to
implement internal-facing social media
– Awareness, Inc. (Sept. 2008)
Large companies are expected to spend $4.6B on social
media tools by 2013 (Forrester Research Apt. 2008)
6% of surveyed businesses spent more than $1M on online
community projects (Deloitte July 2008)
Who is Doing it?
73,000 employees and alums in
IBM’s “social media team” trains
participants on how to use the tool
Web 2.0 guidelines must be followed
– No obscenities or slurs
– No posting of confidential
– No posting of personal information
Who is Doing it?
25,000 regular users
Target users = sales associates
– Many in their late teens and early 20’s
– Promote exchange of ideas at all levels
– Learn what customers are saying about
the Company’s products and services
– Innovate faster
And Two Other Uses of Social
Networking to Consider
Recruiting works on Facebook, but does it
change how hiring decisions are made?
And are those changes lawful?
Social networking and litigation – what are
the courts doing with social media and
Hiring and Social Networking
Do employers search for candidates on Facebook, or Google
them, or otherwise use the Internet to check their background?
If “you” don’t, other managers and recruiters probably do
But can you separate the real from the not real on social
networking sites, and is the “not real” ever a judgment issue?
Remember – job-relatedness is still job-relatedness
But getting publicly available data is not inappropriate
But beware the FCRA and don’t befriend candidates just to get
to their private pages
Hiring and Social Networking
The story of the Wicca witch with the financial
The intersection of job-relatedness, narrow-
mindedness, religion, judgment and Facebook
Would you hesitate to hire this woman?
Would a hiring manager?
Can “judgment” overcome religion?
Discovery and Social Media
Can lawyers “discover” in litigation a
plaintiff’s social networking practices?
The courts are just getting started on this
The answer seems to be “yes,” but how and
to what extent are open questions
The Case of EEOC v. Simply
EEOC raised claims of emotional health of females who
allegedly had been sexually harassed
Simply Storage sought broad data regarding social networking
– the EEOC tried to limit that request to “content specifically
related to matters alleged in the complaint”
The court held that Simply Storage was entitled to (1) profiles,
postings or messages that reveal, relate or refer to “any
emotion, feeling or mental state” and (2) communications that
“reveal, refer or relate to events that could reasonably be
expected to produce a significant emotion, feeling or mental
SD Indiana case, but nice language for employers
Other Discovery Options
Whether plaintiff objectively was offended
by the alleged harassment
Whether plaintiff is seeking to influence
The extent of plaintiff’s physical damages
Should such discovery be sought?
There may be admissions
Or negative perceptions to be obtained (“I can’t
wait to get that money”)(“my boss is an a__hole
who deserves to die”)
Or inconsistencies – medical inability vs. activities
noted on Facebook (or photos)
May help overcome allegations of emotional
Should companies adopt a policy
to regulate the internal community?
What should the policy say?
How should the policy
Should employee consent or
acknowledgment be required?
Should employees receive training?
Common Policy Guidelines
1. Identify yourself
2. Stay on topic
3. Users are responsible for what they say
4. Be honest and be smart
5. Be respectful of others
6. Protect confidential information
7. Comply with all company policies
8. Get your job done
Union organizing efforts
Invasion of privacy
Interference with contract, other torts
Misuse of Company assets, name
Copyright and trademark issues
Sexual harassment, discrimination,
hostile work environment
The New NLRB Issue
The AMR case
The concept of protected, concerted activity
Balancing issues of disparagement
And there is a policy issue as well, at least
according to the NLRB
How, if at all, should the employer audit content?
Prevent misinformation Reduce employee trust
Protect trade secrets Restrict “free speech”
Avoid disputes Unnecessary use of
What should employer do about policy violations?
Questions and Answers