Social Media in the Workplace: A Roundtable Discussion Mary Will & Sarah Benjes September 16 & 17, 2014 Denver & Boulder, Colorado

Why Does This Topic Matter?

“The reality of today's world is that social media, whether it be Twitter, Facebook, Pinterest, Google+ or any other site, is the way people communicate and to some extent has supplemented email for many people.”

— Hon. Matthew Sciarrino In People v. Harris, 945 N.Y.S.2d 505

(N.Y. City Crim. Ct. 2012) (emphasis added)

Your Employees Are Using Social Media

Right Now

Agenda

►Recurring issues when employers monitor social media ►Recurring issues when employees use social media ►Social media policies

► Do you really need one? ► What shouldn’t be included and what should be included?

►What Would You Do? Fun with “Real World” Scenarios ►Tips and Best Practices

Social Media’s Use By Companies Continues to Rise…

►Companies are increasingly using social media to recruit employees ► 34% in 2008 ► 56% in 2011 ► 77% in 2013 ► Primarily to attract passive job candidates who might not otherwise apply

or be contacted by the company ►But only 28% of companies use social media to screen job candidates

Source: SHRM Survey Findings: Social Networking Websites and Recruiting/Selection (Apr. 11, 2013)

Issues When Employers Monitor Social Media

►National Labor Relations Act (“The Big One”) ► NLRA prohibits employers from enacting policies that stifle or prevent employees

from engaging in “concerted activity” for “mutual aid in protection” ► Policies should not be so sweeping that they prohibit the kinds of activity

protected by federal labor law such as employee discussions of wages and working conditions

► Comments generally not protected if gripes are not made in relation to group activity among employees

►An employee is protected under the NLRA when engaging in a discussion of work conditions with other coworkers on social media. Examples include: ► Facebook post with comments ► Twitter discussion and retweets ► Blogs with comments

Issues When Employers Monitor Social Media

►The Fair Credit Reporting Act ► FCRA requires a job applicant’s or current employee’s consent before

the employer hires a third party to run background checks ► Many background checks and third-party investigations now include

social media searches. If these searches are performed and the proper consent not obtained, the employer could violate the FCRA

►Privacy-related Claims ► An employer is permitted to monitor work-related use of electronically

generated communications when the monitoring serves a legitimate business interest. Employers should be aware of privacy concerns when they monitor employees’ electronic communications

► Employers could violate either the Wiretap Act or the Stored Communications Act by accessing private information

Issues When Employers Monitor Social Media

►Anti-discrimination/Anti-retaliation Statutes (Title VII, ADEA, ADA, GINA, whistleblower, etc.) ► Employers conducting their own Google or Facebook search as part of

employment decisions will normally obtain information about the candidate’s protected characteristics on the user’s profile page through photos, wall posts and affiliations

► It is easy to picture a lawsuit for discrimination when a candidate is not chosen and the employer admits to having viewed the candidate’s social media page that revealed a protected characteristic not present on the chosen candidate’s page

Issues When Employers Monitor Social Media

► Colorado Laws (other states may have similar laws) ► Lawful off-duty activities statute

► Employer may not terminate an employee for engaging in any lawful activity off the premises of the employer during nonworking hours unless : (a) it relates to a bona fide occupational requirement; or (b) is necessary to avoid a conflict of interest

► New law prohibiting employer access to social media passwords ► Employer may not request or require an employee/applicant to disclose a

password to access a personal account or service through a personal electronic communications device

► Employer cannot compel an employee/applicant to add an employer or its agent to a list of contacts associated with a social media account

► Employer must not require an employee/applicant to change privacy settings of a social media account

Issues When Employers Monitor Social Media

►Colorado Laws (cont’d) ► Discussion of wages

► Employer may not take adverse action against any employee because the employee inquired about, disclosed, compared, or otherwise discussed the employee's wages.

►Other Nonlegal Issues

► Mistakes ► Bad publicity ► Learning things you didn’t really want to know!

Issues When Employees Use Social Media

►Disclosure of confidential or proprietary information of the company or customers

►Violation of discrimination and harassment policies ►Disclosure of material inside information in violation of securities laws ►Damage to brand, image or reputation of the company ►Statements that are harmful, offensive, or inflammatory (defamation) ►Claims for negligent hiring or retention ►Unauthorized statements or endorsements on behalf of the company ►Wage/hour claims ►Discovery implications

Social Notworking?

Anecdotal Evidence of Social Media in the Courts

Social Networking Site Number of Times Referenced

in Reported Cases* Est. Number of Users**

1. Facebook 3,831 1,317,000,000 2. MySpace 1,651 36,000,000 3. YouTube 822 1,000,000,000 4. Twitter 549 1,000,000,000 5. LinkedIn 318 313,000,000 6. GooglePlus 75 300,000,000 7. Instagram 45 200,000,000 8. Pinterest 28 70,000,000 9. Snapchat 20 30,000,000 10. Vine 0 40,000,000

* Based on a Westlaw “allcases” search performed on September 11, 2014. ** According to data compiled by Digital Market Ramblings, available at http://expandedramblings.com/index.php/resource-how-many-people-use-the-top-social-media/.

Social Media Policies: Why Have One?

►Educate employees – awareness of benefits and risks ►Set expectations about what is acceptable and what is not ►Foundation for future disciplinary action ►Potentially provides clarity—or at least a starting point—in dealing with

unknown situations ►Protect the brand – distinction between company and individual

communications ►Should it be called a “policy” or “guidelines”?

Social Media Policies – NLRB “Red Flags”

►Overbroad clauses protecting confidential information ►Requiring “respectful” posts ►Limiting critical statements ►Prohibiting posts that “negatively affect” the company ►Avoiding use of the company logo

Social Media Policies – What Does NOT Work

►Using general terms like “respectful,” “unprofessional,” or “inappropriate”

►Restricting discussions about wages and working conditions ►Outright prohibitions on use of company name/logo ►Mandatory advance “approval” language ►Prohibiting general discussions with media (and restrictions on

contacting the media without authorization) ►Requiring that concerns only be raised with management

Social Media Policies: What To Include

►One size does not fit all ► Wal-Mart’s policy (“approved” by the NLRB)

►Describe social media ►Describe how it can be used and what activities are subject to the policy ►Decide whether use of social media during work hours is acceptable

► Think about company computers vs. private smartphones

Social Media Policies: What To Include

►Avoid generalities; include specifics ► What do we mean by “be respectful”? ► What do we mean by “refrain from disparaging”? ► E.g.: Language that is vulgar, obscene, threatening, intimidating,

harassing, or in violation of the employer’s anti-discrimination and anti-harassment policies

►Reference other policies ► Include a disclaimer

► E.g.: “These Guidelines do not prohibit employees from discussing among themselves or others their wages, benefits, and other terms and conditions of employment or workplace matters of mutual concern”

Wal-Mart’s Policy Endorsed by NLRB

► Included specific examples of egregious conduct which could not be understood to include protected concerted activity

► “Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination”

► “[I]f you decide to post complaints or criticism, avoid using statements, photographs, video or audio 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. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy”

► Included provision requiring employees to maintain the confidentiality of the company’s trade secrets and confidential information

► “Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications”

Recent NLRA Cases Analyzing Policy Language

Policy Language Result Policy prohibiting “boisterous or disruptive activity in the workplace,” for the purpose of restricting profanity. Prof’l Elec. Contrs. Of Conn., Inc., Case No. 34-CA-071532 (June 4, 2014)

Patently Ambiguous: Policies that fail to define “boisterous, disruptive, or profane” activity are patently ambiguous and could reasonably be construed as barring lawful protected activity.

Policy prohibiting “gossip about the company, an employee, or customer,” defined as “negative or untrue or disparaging comments” about others, “repeating information that can injure a person,” and “repeating a rumor about another person.” Laurus Tech. Inst., 360 NLRB No. 133 (June 13, 2014)

Overly broad: limits employees’ abilities to discuss terms and conditions of employment.

Policy prohibiting, without prior approval, “any words, logo or other marks that would infringe upon the trademark, service mark, certification mark or other intellectual property rights of the Company or its business partners.” Landry’s Inc., Case No. 32-CA-118213 (June 26, 2014)

No Problem! A reasonable employee would either understand that this language does not infringe on protected rights, or be required to exercise judgment regarding whether their activity is violative of the policy.

Recent NLRA Cases Analyzing Policy Language

Policy Language Result Policy prohibiting the disclosure of “confidential information, including Company, customer information and employee information maintained in confidential personnel files.” Lily Transp. Corp., Case No. CA-108618 (April 22, 2014)

Overly broad: could reasonably be construed as prohibiting discussions related to wages with nonemployees (e.g.: union representatives); also, wage information is maintained in personnel files.

Policy urging employees to “limit contact with parents or school officials, and keep all contact appropriate” . . . and requiring that employees “communicat[e] with coworkers . . . [in a] professional and respectful [manner], even outside of work hours.” Durham School Servs., L.P., 360 NLRB No. 85 (April 25, 2014)

Overly broad: failure to adequately define or provide examples of “appropriate,” “professional,” and “respectful.”

Best Practices

► Social Media Policy or Guidelines ► Don’t just stick it in the employee handbook ► Train; talk to employees about the issues

► Screening ► If conducting Internet searches of candidates, establish search protocols and

procedures and apply them consistently ► Search only publicly available information that is not password-protected ► Insulate the decision-maker from impermissible considerations

► Disciplining or Terminating Employment ► Check your facts. Don’t jump to conclusions ► The “thick skin” test ► Keep the labor-law considerations in the back of your head

Stay Tuned: Even Supreme Court Justices Grapple With These Issues ...

“If I’m applying the First Amendment, I have to apply it to a world where there’s an Internet, and there’s Facebook, and there are movies like. . . The Social Network, which I couldn’t even understand.”

— Justice Stephen Breyer

November 2010

But Have Fun; It Shouldn’t Come To This…

Questions?

Mary L. Will, Esq. mary.will@FaegreBD.com

(303) 607-3771

Sarah E. Benjes, Esq. sarah.benjes@FaegreBD.com

(303) 607-3606