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					  Fisher & PhillipsLLP
            ATTORNEYS AT LAW

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                                                                       Social Media:
                                                           The Collision of
                                                            MySpace, Your
                                                         Space and Our Space
                                                         Presented by:
                                               Edward F. Harold
                                            Phone: (504) 592-3801
                                       Email: eharold@laborlawyers.com


                                                   www.laborlawyers.com
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The Case of Ashley Payne



                      • Georgia H.S. Teacher
                      • Took a trip to Europe
                      • Was fired for posting
                        this photo on Facebook




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Overview

• Some amazing statistics
• 4 basic rules, with real-life examples
• 10 practical pointers




                 Fisher & PhillipsLLP
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 Explosion of Social Networking


MySpace reports:
• More than 185 million users
• 50 million posts per day




                 Fisher & PhillipsLLP
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 Explosion of Social Networking

• As of Summer 2010,
  Facebook had more than
  400 million active users
  worldwide.

• At the same time, the United
  States Census Bureau’s
  website indicated that the
  population of the United
  States was approximately
  309,448,262.      Fisher & PhillipsLLP
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Explosion of Social Networking Sites

• According to Facebook’s
  website, over 50% of the
  site’s users log onto
  Facebook in a given day.

• The fastest growing
  demographic is users age
  35 and older.

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 Explosion of Social Networking

LinkedIn:
• “Professional” site
• More than 50 million users
• Projected 2010 revenues to be
  $110 M
• Average user is 41, with annual
  income of $110,000

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  Explosion of Social Networking

Other sites:
     –   Windows Live Spaces                  120 million
     –   Habbo                                118 million
     –   Friendster                            90 million
     –   Flixster                              63 million
     –   Classmates                            50 million
     –   MyLife                                50 million
     –   Bebo                                  40 million
     –   Tagged                                10 million


http://en.wikipedia.org/wiki/List_of_social_networking_websites

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Explosion in Corporate Use of Social Networking

 • 79% of Global Fortune 100 Firms
   use at least one social media
   platform
   – 65% of firms use Twitter
   – 54% of firms use Facebook
   – 50% of firms have a YouTube
     channel
   – 33% use corporate blogs
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    In the Past 12 Months

•   42% of companies say layoffs have increased data leakage
•   34% of companies were harmed by sensitive info release
•   31% of companies terminated someone for e-mail violations
•   24% of companies say e-mail subpoenaed
•   8% terminated someone for use of social networking sites

    Proofpoint’s 2009 Study on Outbound e-mail and Data Loss Prevention




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A New Vocabulary

•   Sexting
•   Textual Harassment
•   Datamation
•   T.W.D. – Texting While Driving
    – Various state and local laws
• Name squatting

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 Employers Lag Behind
• Despite the dramatic increase in the use
  of social networking websites, in a
  survey done by the Wall Street Journal
  only 26% of employees said their
  employer had a policy regarding social
  networking.
• A recent article summarizing a
  Manpower study stated that only 29% of
  employers have a“formal policy
  regarding employee use of social
  networking sites.”Worldwide- 20%.

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 Rule No. 1
 Networking Is Beneficial for Business
• Many companies use social networking
• Companies can:
   – develop a corporate brand or image
   – launch new promotions
   – improve customer access to
     information
   – monitor their competition



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    Rule No. 2
    The Internet Is Beneficial for Employers

•   Learn what employees are doing away from work
•   Learn background information about people
•   Learn about competitors
•   Learn about marketplace/trends
•   Be cautious- there’s a lot of open space out there.



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   Use of Social Networking Sites
• According to Career Builder.com survey, nearly half (45%) of US employers
  report using social networking sites to dig up information about job
  candidates, a significant jump from 22% last year.

• 53% of survey respondents rejected candidates due to the posting of
  provocative or inappropriate photographs or information.

• 44% rejected a candidate due to content showing the candidate
  drinking/using drugs.

• 35% rejected candidates because they bad-mouthed their previous
  employer, co-workers or clients.

• 29% disqualified a candidate because of poor communication skills.

• 26% rejected a candidate because of discriminatory comments
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Are Social Networking Sites a Reliable
Source?




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Reliability of Social Networking Sites

• Fake job reference
  services
“We are opening doors for
  job seekers who
  sometimes just need a
  second chance.”
• www.fakeresume.com
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A “Family Emergency”

 Kevin Colvin called in and reported
 that he would miss work due to a
 “family emergency.” A few days
 later, he posts his pictures from a
 Halloween party.


 http://www.switched.com/2007/11/13/lying-male-intern-busted-
 in-a-dress-on-facebook/

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Fired on Facebook




                              Fisher & PhillipsLLP
http://www.sbs.com.au/news/article/1070187/Woman-fired-via-Facebook-after-rant
                            ATTORNEYS AT LAW
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How to Lose a New Job




                                    http://bhc3.wordp
                                    ress.com/2009/03
                                    /17/how-to-tweet-
                                    your-way-out-of-a-
                                    job/
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    Rule No. 3
    Using the Internet Can Be Risky

•   Title VII & other discrimination laws
•   Stored Communications Act
•   Invasion of privacy
•   NLRA




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Employment Screening Tool?

• Caution – Risks May Outweigh Possible Gains
     – Savvy user will set privacy settings to restrict
       access to information
     – Social Network profiles indicate race, religion,
       disability, sexual orientation or other protected
       categories of candidate
     – Important defense for failure to hire claim is actual
       ignorance of protected characteristic


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Using the Internet for Screening
                  Race

           Jane Doe




                                        Marital Status

                                               Political Views


                                        Religion


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Using the Internet for Screening




  Age

                                    Familial
                                  Responsibility



  Sexual Orientation    Fisher & PhillipsLLP
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Risk May Outweigh Possible Gain

Important defense for failure to hire claim is
actual ignorance of protected characteristic.
If you know it, the assumption is that you
used it.



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Claims Based on a Post

• Potential lurking claims
  – “Sexting” with a co-worker
  – Getting “poked” by the boss on Facebook
  – Individual discussing medical
    condition/disability on Facebook
• In 2009, there were 12,696 Harassment
  complaints filed with the EEOC. Experts
  state that tech-based harassment claims
  are contributing to the increase.
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 Watch What You Say

• Manager wrote:
   – “What’s wrong with women these days?”

   – “Chicks seem to have more issues these
     days than Jet Magazine and keep up more
     drama than daytime TV and Jerry Springer
     combined.”

• Plaintiff used comments to show
  discriminatory animus.
   – Derrick v. Met. Gov’t. of Nashville & Davidson
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  Stored Communications Act

• Employees set up password-protected
  blog on MySpace to complain about
  management. It contained confidential
  information.
• Employer asked employee with access
  to give up her password.
• Management took action against
  employees based on the blog content
  and employees sued.
• Jury found for employees.
                                       Fisher d/b/a Houston’s
Pietrylo, et al. v. Hillstone Restaurant Group & PhillipsLLP

                                  ATTORNEYS AT LAW
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 Invasion of Privacy?

• As a practical matter, many users restrict
  information with privacy settings
• With actual permission to view information,
  privacy claim likely unsuccessful
• No “fake” friend requests

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NLRA Protections for Employees

• If employees are discussing wages, hours, and
  working conditions on a blog and contemplating
  calling out in mass to protest the lack of a wage
  increase . . .

• Discipline may be inappropriate in certain
  circumstances as the employees may be
  engaging in protected activity.
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 Public Relations Nightmares

• An employee took a bath in a burger chain's sink.
• Someone filmed it and posted the video to MySpace.
• The local Health Department was among those
  viewers who were not amused.
• Similar situation with a national pizza chain




                    Fisher & PhillipsLLP
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 Lara Buys “Pays The Price”

• Lara Buys allegedly
  caused the death of her
  best friend in a drunk
  driving accident.
• The judge saw photos
  of her drinking.
• She got 2 years in jail –
  not just probation.
http://www.law.com/jsp/lawtechnologynews/PubArticleLTN.jsp?id=1202427941512
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  Rule No. 4
  Special Rules Apply to Public Employers

• Freedom of speech, limited to matters of
  public concern
• Right to be free from unlawful search
  & seizure
• Due process rights
• Property rights in their jobs


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The Future?




               Fisher & PhillipsLLP
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In Summary . . .

• Rule No. 1 – Networking is beneficial for business.

• Rule No. 2 – The internet is beneficial for employers.

• Rule No. 3 – Using the internet can be risky.

• Rule No. 4 – Special rules apply to public employers.




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Practical Guidelines
1.  Realize many different local, state, and federal laws
    apply
2. Be real: expect employees to use these sites
3. Beware of what you learn: ignorance can be helpful
4. Limit searches to “professional” sites
5. Be consistent
6. Publish your policies
7. Train managers
8. Educate employees
9. Monitor the web about your company
10. Follow new developments
                      Fisher & PhillipsLLP
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    Policy on Social Networking Sites

• Remind employees:
     –   online sites are in the public domain
     –   off-duty actions can result in discharge
     –   be respectful
     –   use privacy controls
     –   productivity counts
•   Require compliance with existing policies
•   Prohibit defamation and fraud
•   Prohibit references to customers
•   Ban use of protected logos or trademarks
•   Require employees to use disclaimers
                               Fisher & PhillipsLLP
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Other Related Policies

• EEO & No Harassment

• Electronic Communications and Internet Usage on Company
  Systems

• Confidential Information & Trade Secrets

• Cell phones

• Use of Blackberries or PDAs


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Tips For Managers

• Don’t become “friends” with employees

• Don’t reveal anything you wouldn’t say or post in
  public

• Don’t engage in fraud (“fake” friend requests or
  passwords)

• Use privacy controls to manage flow of information

• Web content can be false
                  Fisher & PhillipsLLP
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Follow New Developments

December 14, 2009
  – 9th Circuit Court of Appeals held that Plaintiff Quon
    possessed a privacy right in the personal text
    messages he sent and received from his city issued
    communication device.
  – U.S. Supreme Court heard the case. Opinion has not
    yet been issued.

   Ontario, Cal. v. Quon, U.S., No.08-1332, cert. granted 12/14/09.


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  Fisher & PhillipsLLP
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                                       Final Questions?



                                                         Presented by:
                                               Edward F. Harold
                                            Phone: (504) 592-3801
                                       Email: eharold@laborlawyers.com
                                                  Fisher & PhillipsLLP
                                               ATTORNEYS AT LAW
                                                 www.laborlawyers.com
Atlanta · Charlotte · Chicago · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las Vegas · Louisville
                                                  Solutions at Work              ®
 New Jersey · New Orleans · Orlando · Philadelphia · Phoenix · Portland, ME · Portland, OR · San Diego · San Francisco · Tampa ·
                                                          Washington, DC

				
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Description: Documents/information from Ed Harold's presentation at the October IABC New Orleans luncheon.