EMPLOYEES, SOCIAL MEDIA, SMARTPHONES, TABLETS: LEGAL ISSUES FOR EMPLOYERS First Run Broadcast: January 15, 2015 Live Replay: June 8, 2015 1:00 p.m. E.T./12:00 p.m. C.T./11:00 a.m. M.T./10:00 a.m. P.T. (60 minutes) The way employees communicate with each other, their supervisors, family and friends (while on the job), and with the outside world about their companies and work has changed dramatically in the last several years. Seemingly everyone carries smartphones in their pockets, tablets in their bags, and all of these devices are hyper-connected through text, voice, and video chat, and again through social media. What s an employer to do when employees are immediately interconnected with virtually everyone in the world with a few keystrokes? On the answer to that question hangs many real-world issues for employers liability for employee-employee harassment, the validity of workplace investigations, the protection of sensitive employer information, privacy monitoring, and much more. This program will you with a practical guide to the major legal issues for employees involving employee use of smartphones, tablets, social media and other digital media in the workplace. BYOD Bring Your Own Device to work smartphones, tablets and social media use by employees in the workplace Privacy what can an employee do to monitor employee use without invading their privacy and triggering liability? Harassment how use of digital media by employees can tag employer s for harassment/discrimination liability Investigations can an employer access employee email, social media and other digital communications? Usage what restrictions can and should employers place on employee use of digital devices on the job? Secrets how do employers prevent disclosure of trade secrets and other sensitive information? Torts what are emerging social media torts in the workplace? Speaker: Gregg M. Lemley is a partner in the St. Louis office of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., where he has an extensive labor and employment law and related commercial litigation practice. He represents employers in a wide range of litigation matters in both state and federal court in disputes involving discrimination based on race, sex, age, religion, disability, national origin and the FMLA, sexual and racial harassment, and retaliation. Mr. Lemley also has a substantial practice assisting employers in the development, implementation and application of harassment, drug testing, family medical leave and a wide range of other personnel policies. Mr. Lemley received his B.A. from Webster University and his J.D. from Washington University School of Law.
Gregg M. Lemley gregg.lemley@ogletreedeakins.com (314) 802-3941
Do-It-Yourself Background Checks
Social Media and Hiring Why look at social media during the hiring process? Obtain information Cultural fit Potential business risk
Why View Applicants Social Networks? Discrimination Disclosure Lies Disparagement Style and ability Licenses and certifications Personality
Why View Applicants Social Networks?
Impact On Hiring Practices 70% 86%
Information Discovered Good, Bad or Both? Race Gender Family Political Views Controversial Opinions Religion Children National Origin Sexual Orientation Age
Information Discovered Good, Bad or Both? Drug Use Alcohol Abuse Alcoholism Arrest Information Criminal History Marital Status Prior Lawsuits Prior Charges Bigotry Worker s Comp Claims Periods of unemployment Disclosure of prior employer s secrets
Information Discovered Whistleblowing Employer bashing Employee bad mouthing Sexual content Harassment of coworkers Gender identity Negativity Good, Bad or Both? Defamation of employers, clients, or third parties Image
Information Discovered Tobacco use Other lawful out of work activities Records of disabilities Good, Bad or Both? Health issues Psychiatric issues Medical history Medications
Do Employers Really Want to Utilize This Information?
Do Employers Really Want to Utilize This Information?
Risks in Using Social Media in Hiring Discrimination avoidance tip: Insulate decision maker have different individual look at the sites and gather specific, relevant information Only look for specific things, e.g.: Inappropriate photos Ties to a competitor Opposition to your business
Recommendations 1. Make informed decision on use of internet searches for applicants/employees 2. Include release/authorization in applications 3. Check terms and conditions of website being accessed 4. Don t be cute (do not falsify, impersonate, retrieve keystrokes to get access) 5. Retain information used for hire/nohire decision
Recommendations 6. Focus on job-relatedness of information 7. Ensure right person is involved to search 8. Evaluate use of third party to conduct searches 9. Consistently apply search 10. Increased support for job actions 11. Time of search - Pre-Offer/Post- Offer
Recommendations 1. Make informed decision on use of internet searches for applicants/employees
Recommendations 2. Include release/authorization in applications
Recommendations 3. Check terms and conditions of website being accessed
Recommendations 4. Don t be cute (do not falsify, impersonate, retrieve keystrokes to get access)
Recommendations 5. Retain information used for hire/no hire decision
Recommendations 6. Focus on job-relatedness of information
Recommendations 7. Ensure right person is involved
Recommendations 8. Evaluate use of third party to conduct searches
Recommendations 8. Evaluate use of third party to conduct searches Cons include Lack of control over search Inability to obtain some information you may want Difficulty in defining what would be pass or fail Fair Credit Reporting Act obligations
Recommendations 9. Consistently apply search
Recommendations 10. Increased support for job actions
Recommendations 11.Time of search Pre- Offer/Post Offer
Recommendations 11.Time of search Pre- Offer/Post Offer Cons of Post-Offer include Focusing the applicant on the reason for the decision and potentially leading increased likelihood of litigation due to yanking of job offer
Legislation and Threatened Litigation over Requiring Passwords
Proposed Legislation On April 9, 2012, Maryland became the first state to pass legislation banning employers from asking for employee and job applicant social media site passwords.
Proposed Legislation Three other states passed similar legislation in 2012: Illinois California Michigan
Proposed Legislation Seven states enacted legislation last year. Arkansas Colorado New Mexico Oregon Utah Vermont Washington
Proposed Legislation Seven more states have passed similar legislation so far in 2014: Louisiana Massachusetts New Hampshire Oklahoma Rhode Island Tennessee Wisconsin
Proposed Legislation Legislation has been introduced or is pending in at least 21 other states. Two U.S. Senators have requested the DOJ and EEOC to investigate whether password requests violate federal law.
Employee Use of Social Media
Why Should You Care? Confidential information Defamation Negativity Offense to co-workers Harassment of co-workers on social media sites Discussing controversial topics or including sexual or controversial material
Why Should You Care? Rumors spread quickly to millions of people Damage to reputation or brand Difficult to stop or clean up Loss of your or your client s confidential information Identity of offenders may be tough to learn Firing for Internet use may lead to lawsuits
What Are Employers Being Sued For? Discrimination Retaliation Harassment Anti-union animus Disclosure of confidential information Invasion of privacy Defamation Violations of HIPAA, ADA and FMLA Negligent hiring, retention or supervision [insert your favorite plaintiff lawyer s wrongful termination theory here]
Social Media Harassment Policies Even though social media-related complaints are on the rise, most employers do not have policies or training to address A recent survey found that only 34 percent of employers had a specific policy for dealing with harassment via social media. Only 32 percent provide training on preventing harassment and retaliation via social media.
Free Speech Issues Knee-jerk reaction that discipline for blogs and social media postings violate free speech rights Illustrates need to communicate with employees about blogging
Termination for Employee Social Media Posts and NLRB Impact
National Labor Relations Board NLRB s position on employers responses to comments on social media. Settlement with AMR in February over AMR s termination of employee for calling her supervisor a mental patient, a scumbag and a dick on Facebook.
National Labor Relations Board NLRB s position on employers responses to comments on social media. Complaint against Thomson Reuters in April for disciplining reporter who Tweeted that his employer should deal honestly with [union] members
National Labor Relations Board NLRB s position on employers responses to comments on social media. Complaint against Chicago-area BMW dealer where salesman terminated for Facebook post criticizing quality of food and beverages at a dealership event.
April 2, 2012 NLRB ALJ Opinion Found an employers social media policy violated employees Section 7 rights despite employer disclaimer that is should not be construed or applied in a way that interferes with employees rights under federal law. In January the NLRB General Counsel s office released a report describing 14 cases concerning social media issues, 7 of which dealt with policies rather than actions, and 5 of the 7 were found to be unlawful.
May 30, 2012 NLRB Advice Memo Acting General Counsel referenced social media policies of several different companies. Determined certain provisions were overbroad and violated the NLRA. Included examples of specific provisions that would be lawful.
May 30, 2012 NLRB Advice Memo Unlawful Disparaging or defamatory comments about the Employer, its employees, officers, directors, vendors, customers, partners, affiliates or the Employer s products/services are prohibited. Lawful Avoid comments that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying.
May 30, 2012 NLRB Advice Memo Unlawful Discussions related to the Employer must be completely accurate and not misleading. Lawful Make sure you are always honest and accurate when posting information or news and if you make a mistake, correct it quickly. Never post any information or rumors you know to be false about the Employer, fellow employees, members, customers, suppliers, people working on behalf of the Employer, or competitors.
May 30, 2012 NLRB Advice Memo Unlawful Posting confidential or non-public customer, employee, or company information is prohibited Lawful Maintain the confidentiality of Employer trade secrets and private or confidential information.
May 30, 2012 NLRB Advice Memo Unlawful Employees must obtain authorization from the Employer before posting about the Employer or its business activities. Lawful Express only your personal opinions and never represent yourself as a spokesperson for the Employer.
The NLRB s First Social Media Decision Costco Wholesale Corp. Prohibiting statements posted electronically that damage the Company, defame any individual or damages any person s reputation unlawful. Rule that sensitive information...may not be shared, transmitted, or stored for personal or public use without prior management approval unlawful.
The NLRB s First Social Media Decision Costco Wholesale Corp. Unanswered questions: Policies on friending co-workers. Requesting employees report unusual or inappropriate social media activity Savings clauses
NLRB Slams Facebook Firings NLRB cemented position that social media represents a virtual water cooler where workers speech may be entitled to protection 5 workers fired for bullying and harassment over Facebook comments after an employee indicated that she would voice concerns about co-worker performance Hispanics United ordered to reinstate workers after the Board ruled that the comments could not be construed as harassment or bullying.
Facebook Association Firing Employees expressed concern over store closing hours and unsafe neighborhood to management. Management failed to respond. Employees posted several messages on Facebook including messages about brining workers rights handbook in to store. Two employees fired directly for postings One employee fired for association with employees involved in Facebook posting.
Facebook Association Firing NLRB found postings to be protected concerted activity saying: The Facebook postings were complaints among employees about terms and conditions of employment and about management s refusal to address employees concerns such conversations for mutual aid and protection are classic concerted protected activity. NLRB rejected employer s argument that postings were to entrap employer into firing employees. NLRB ordered all employees reinstated and given back pay.
NLRB Sides with Car Dealer in First Facebook Firing Decision BMW salesman terminated for posting defamatory comment about Land Rover accident at dealership NLRB ruled The Land Rover accident posting was obviously unprotected by the NLRA it was posted solely by Becker, apparently as a lark, without any discussion with any other employee of the respondent and had no connection to any of the employees terms and conditions of employment.
NLRB Sides with Car Dealer in First Facebook Firing Decision Dealership also had courtesy rule in its social media policy requiring behavior toward customers, vendors, supplies and fellow employees in posts Board found this to be an unlawful restraint of Section 7 rights
NLRB: Facebook Post Considered Union Activity Employee sent emails to co-workers as well at other guides in the New York area detailing concerns about existing terms and conditions of employment listing benefits of unionizing. Employer terminated employee after he publicized his union organizational activities and criticized company s employment practices in emails and Facebook postings to third parties.
NLRB: Facebook Post Considered Union Activity NLRB found emails and postings were communications that constituted union activity and were protected. Employer ordered to reinstate employee and give back pay.
May 8, 2013 NLRB Advice Memo Employee commented on Facebook that she told her supervisor to back the freak off and typed FIRE ME and make my day in addition to insulting employer and using foul language. Comments not protected because they were mere boasting and griping. Did not express shared concerns about working conditions.
Facebook Like Protected, Concerted Activity? Connecticut sports bar discharged two workers for poor performance, register discrepancies and disloyalty Profanity-laced Facebook discussion regarding employer s tax withholding calculations ensues Workers Liked Facebook wall posting regarding employer s withholding tax practices
Facebook Like Protected, Concerted Activity? NLRB Administrative Law Judge ruled that the workers were engaged in protected, concerted activity a discussion with other workers about the calculation of their tax withholdings when they took part in the Facebook exchange The Board agreed with the Judge, determining commenting on Facebook status amounted to endorsing complaint
Facebook Like Protected, Concerted Activity? I further find that selecting the Like option on Facebook account constituted participation in the discussion that was sufficiently meaningful as to rise to the level of concerted activity. Esposito, ALJ Board took a narrower view, interpreting the Like as merely an approval of the original status update and not the comments stemming from it
Facebook Like Protected, Concerted Activity? The employer has asked the Second Circuit to review the Board s ruling. Three issues may be addressed on appeal: Whether clicking the like button deserved protection. Whether the conduct (i.e., profanity) was egregious enough to lose protection. Whether the employer s Internet/Blogging policy violated the act.
Facebook Like Protected, Concerted Activity? Employer provided youth programs to middle schools and high schools and received funding from private donors as well as the government. Employer discharged two employees over a profane Facebook conversation, citing concerns about safety and funding. The NLRB argued the conversation was continuation of complaints made in a staff meeting so constituted protected concerted activity.
Facebook Like Protected, Concerted Activity? NLRB Administrative Law Judge ruled that the employer could lawfully conclude that the actions proposed in the Facebook conversation were not protected under the Act and that the employees were unfit for further service. The Board recently upheld the ALJ s ruling, finding the conversation advocated insubordination and, therefore, lost the Act s protection.
Facebook Like Protected, Concerted Activity? NLRB ruled that a workplace rule barring negativity and requiring employees to represent their employer in a positive and professional manner in the community prohibited protected concerted activity. The Board held that the rule could be understood to ban employees from making work-related statements about the employer that were not positive.
Facebook Like Protected, Concerted Activity? NLRB Administrative Law Judge ruled that an employee who complained about an allegedly rigged bikini contest on Twitter engaged in protected concerted activity. The Judge also struck down employee handbook rule that prohibited posting negative comments about the Company or coworkers and posting any information regarding a coworker or customer.
Employee Use of Social Media Supervisors Friending Subordinates
Supervisors Friending Subordinates Could mean supervisors learn protected personal information about employees Potential favoritism issues Can blur the line between supervisor and subordinate Means supervisors must be extremely careful about what they post
The Negative Impact of Linkedin References
Twitter Feed Feud Employee was sued for continued use of Twitter account after employment ended Employer alleged Twitter followers (17,000) should be treated as a customer list and be protected under trade secrets Case brings to question the value of a Twitter follower
Twitter Feed Feud The case highlights the importance of having a written policy establishing that the company owns the social media site (and any followers or client information) and what happens to the account when employment relationship ends
Social Media Post-Employment Former employees may use social media to violate restrictive covenants Facebook posting in lieu of sending solicitation letters Twitter instead of new job announcements Discuss social media in exit interviews Monitor social media of key former employees
Facebook Post Does Not Violate Non-Solicitation Agreement Former employee posted general information about the new employer on Pre-Paid Legal Services private web pages that he had created for Pre-Paid Legal Services He posted on Facebook accolades regarding new employer s product He sent Twitter invitations to prior employer s sales associates; however, did not request sales associates follow him
Facebook Post Does Not Violate Non-Solicitation Agreement While the Court held that employee had breached non-solicitation by meeting with a single, downline colleague in an attempt to have colleague join new employer Court cited that employee had neither intended to nor solicited others via Facebook Court further held that Twitter invitations were not solicitation as the invites were generated by the social media site itself
Social Media Hijacking
LinkedIn Hijacking CEO terminated after corporate buyout Accused company of hijacking LinkedIn account, changing password and replacing name and photograph Former CEO used LinkedIn account to promote company s services, foster her reputation and build professional relationships Company defeated claims that it violated anti-hacking and trademark laws
Prevent Hijacking Claims Have a written policy establishing that the company owns the social media site, what happens to the account when employment relationship ends Policy should specify that the employee must return login and password information when employment relationship ends
Social Media and Litigation
Social Media and Litigation Uses of social media in litigation Investigating plaintiff Incriminating status updates Helpful photographs Alliances with discriminatory groups Friends or other witnesses you may want to speak with or depose Information concerning job search efforts (or lack of) Preparing for trial and investigating jury
Discovery of Social Media Reid v. Ingerman Smith LLP Plaintiff claimed mental anguish stemming from alleged sexual harassment Court ordered plaintiff to disclose social media communications and photographs that reveal, refer, or relate to any emotion, feeling, or mental state.
Sanctions for Deleted Facebook Gatto v. United Airlines, Inc. Plaintiff deleted Facebook account Judge ruled it destruction of evidence based on four-factor test Evidence in plaintiff s control Actual suppression/withholding of evidence Relevant to claims and/or defenses Reasonably foreseeable evidence would be discoverable
Sanctions for Deleted Facebook Gatto ruling shows the court will take preservation of requested social media content seriously Plaintiff s are not getting a free pass if information is deleted that is relevant to the lawsuit, there will be consequences. Employers need to request discoverable, relevant social media content with initial discovery requests
Miscellaneous Litigation References LinkedIn with non-compete
NEW SECTION When the Stored Communication Act Applies to Facebook Posts
What is the Stored Communication Act?
The SCA May Prohibit Employer Access to Employee Facebook Posts Ehling v. Monmouth-Ocean Hospital Service Corp.
The SCA May Prohibit Employer Access to Employee Facebook Posts Ehling v. Monmouth-Ocean Hospital Service Corp.
The SCA May Prohibit Employer Access to Employee Facebook Posts Rodriguez v. Widener University
The SCA May Prohibit Employer Access to Employee Facebook Posts Rodriguez v. Widener University
NEW SECTION Confidentiality and Other Employment Concerns from Developing Social Media Apps.
WhatsApp Allows users to send text messages through the app instead of through their provider s network. Information is transmitted outside of corporate controls. Could put an employer confidential/proprietary information at risk.
Vine and Instagram Allow users to share videos and photos with each other. Could also put confidential information at risk. Can also cause PR headaches.
Snapchat Text and imaging sharing app designed to destroy the messages sent through it. Courts have not yet weighed in an employer s obligation to preserve and produce messages sent through apps like Snapchat. Could cause problems for employers investigating harassment complaints.
Yelp, Tripadvisor, etc. Industry-specific sites where users contribute reviews of restaurants, hotels, etc. Businesses that choose to respond to reviews should not do so through anonymous posts should be an official company spokesperson. Make sure confidential information is not inadvertently shared when responding.
Match.com and Tinder At least one federal judge has ruled that a hostile work environment claim based on a supervisor urging a subordinate to join Match could survive a motion to dismiss. Co-workers finding themselves on dating sites and apps can also cause problems.
What s an Employer to Do? Develop a social media policy (that complies with recent NLRB decisions and guidance). Make sure all the various forms of social media are covered by the policy. Educate your employees on the policy. Include social media in a duty-to-report policy. Reassess Bring Your Own Device policies
VT Bar Association Continuing Legal Education Registration Form Please complete all of the requested information, print this application, and fax with credit info or mail it with payment to: Vermont Bar Association, PO Box 100, Montpelier, VT 05601-0100. Fax: (802) 223-1573 PLEASE USE ONE REGISTRATION FORM PER PERSON. First Name Middle Initial Last Name Firm/Organization Address City State ZIP Code Phone # Fax # E-Mail Address Employees, Social Media, Smartphones, Tablets: Legal Issues for Employers Teleseminar June 8, 2015 1:00PM 2:00PM 1.0 MCLE GENERAL CREDITS VBA Members $75 Non-VBA Members $115 NO REFUNDS AFTER June 1, 2015 PAYMENT METHOD: Check enclosed (made payable to Vermont Bar Association) Amount: Credit Card (American Express, Discover, Visa or Mastercard) Credit Card # Exp. Date Cardholder:
Vermont Bar Association CERTIFICATE OF ATTENDANCE Please note: This form is for your records in the event you are audited Sponsor: Vermont Bar Association Date: June 8, 2015 Seminar Title: Location: Credits: Program Minutes: Employees, Social Media, Smartphones, Tablets: Legal Issues for Employers Teleseminar - LIVE 1.0 MCLE General Credit 60 General Luncheon addresses, business meetings, receptions are not to be included in the computation of credit. This form denotes full attendance. If you arrive late or leave prior to the program ending time, it is your responsibility to adjust CLE hours accordingly.