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© Shipman & Goodwin LLP 2017. All rights reserved.

By Daniel A. Schwartz

CBIA HR Conference 2018

Who Owns Your Social Media

The Rise of Social MediaTop U.S. Websites in 2004• 1. Yahoo!• 2. TimeWarner• 3. MSN• 4. Google• 5. eBay• 6. Amazon• 7. TerraLycos• 8. Primedia• 9. Excite• 10. Viacom• 11. Verizon• 12. cnet

Top U.S. Websites in 2018• 1. Google• 2. YouTube• 3. Facebook• 4. Reddit• 5. Amazon• 6. Wikipedia• 7. Yahoo• 8. Twitter• 9. Netflix• 10. eBay• 11. Instagram• 12. Imgur

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Reading up on #work #lazy #idc

Sick my ass #rebel #skippingwork

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#hightimes420 #highasf@*!420 #Wakenabake #highatwork

#idgaf #stoner #smokeweed420 #stonerlifebi#*! #whynot

#baked420 #redneck #lazy #high

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Program Objectives

• Can employers monitor, direct, or limit employee social media conduct?

• Does the company own social media content or does the individual?

• Look at practical steps employers may take before and during employment, and post-employment to clarify and protect company assets.

The Rise of Workplace Zombies

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Warning: They may not look like this.

Smartphone Zombies

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Smartphone Zombies• Wikipedia -

A smartphone zombie (smombie) is a pedestrian who walks slowly and without attention to their surroundings because they are focused upon their smartphone.

In the Netherlands

Pavement lights used at pedestrian crossings

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Now Add….

Ignore at Your Own Peril

• 2.789 billion active social media users

• Facebook has over 2.047 billion daily active users

• Snapchat – 255M

• Linkedin – 106M

© 2012 Pullman & LLC

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And Messaging Apps Are Next

• 29% of smartphone owners use messaging apps such as WhatsApp or Kik

• 24% use messaging apps that automatically delete sent messages such as Snapchat or Wickr

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Where Are The "Kids"?

• Among 18-29yo, 56 percent of smartphone users use auto-delete apps (like Snapchat)

More than 4 times the share among those 30-49yo (13%)

• Similarly, 42% of those same 18-29yo use general messaging apps

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And Among Teenagers….

• Daily Video Consumption consist of Netflix (37%) and Youtube (29%). Cable TV just 22%.

• Piper Jaffray Fall 2017 study

47% use Snapchat

24% use Instagram

9% use Facebook

7% use Twitter %

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Social Media: n.

Forms of electronic communication (such as websites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (such as videos).

Merriam-Webster Dictionary

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Can Employer Monitor?

• Several laws and concepts in play

• Remember to look at both state and federal law

CT Electronic Monitoring Law

• Conn. Gen. Stat. 31-48d

• Shall give “prior written notice” informing them of “types of monitoring”

• Shall post in conspicuous location

• Exceptions apply

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Password Laws for Hiring• Passed in 2015

Prohibits employer from requiring or requesting from employee or applicant to disclose username or password for purpose of accessing personal social media (including any personal online account)

➢ Prohibition does not apply to any account “created, maintained, used or accessed by employee or applicant for a business purpose of an employer or prospective employer

Prohibits employer from asking to access social media in presence of employer (“shoulder surfing”) or requiring an acceptance of invitation

Prohibits employer from requiring person to divulge any personal social media information

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More on Connecticut Law

• Employers may not fire employee who refuses request or initiates a complaint about employer’s actions

• Exceptions apply

For investigations conducted by employers to ensure compliance with state/federal laws

To ensure continued access to employer-provided online accounts or electronic devices

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More on Connecticut Law

• Employers are expressly allowed to monitor, access, or block electronic data stored on or travelling through employer’s network

• Takeaways?

Remember that other publicly available online content may still be used by employers

And the protections for employer’s OWN social media remains strong

One More Law to Keep in Mind: National Labor Relations Act

RIGHTS OF EMPLOYEES

Sec. 7. Employees shall have the right to self-organization,to form, join, or assist labor organizations, to bargain collectivelythrough representatives of their own choosing, and to engage inother concerted activities for the purpose of collective bargaining orother mutual aid or protection, and shall also have the right torefrain from any or all such activities except to the extent that suchright may be affected by an agreement requiring membership in alabor organization as a condition of employment as authorized insection 8(a)(3).

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NLRB’s New Normal

• Two types of issues:

Retaliation for engaging in online conduct

Overbroad employer policy that “chills” speech

• Both fall within Section 7

• Cases brought against non-union employers

Policy Cases - NLRB

At issue: Does policy prohibit employees from discussing among themselves or others issues of terms & conditions of employment?

• Or, does it use broad vague terms that could be seen by employees as restrictions

May not be just social media policies

• “rude or discourteous behavior”

• Or prohibit use of company names or logos

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Examples of Policies - Illegal

• Forbidding employees from making “disparaging comments about the company through any media, including online blogs, other electronic media or through the media.”

• A policy that “employees should generally avoid identifying themselves as the employer’s employees unless discussing terms and conditions of employment in an appropriate manner.”

• Prohibiting employees from using social media for “unprofessional communication that could negatively impact the Employer’s reputation or interfere with the Employer’s mission or unprofessional/inappropriate communication regarding members of the Employer’s community.”

Examples of Policies - Legal

• Prohibiting employees from using or disclosing confidential and/or proprietary information, including personal health information about customers or patients.

• Prohibiting employees from using social media to “post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”

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Examples - Legal

“Do not make negative comments about our customers in any social media.”

You may not “[c]reate a blog or online group related to [the company] (not including blogs or discussions involving wages, benefits, or other terms and conditions of employment, or other protected activity) without the advance approval of the legal and communications department.”

“Do Not Violate the Law and Related Company Policies: Be thoughtful in all your communications and dealings with others, including email and social media. Never harass (as defined by our antiharassment policy), threaten, libel or defame fellow professionals, employees, clients, competitors or anyone else. In general, it is always wise to remember that what you say in social media can often be seen by anyone. Accordingly, harassing comments, obscenities or similar conduct that would violate [company] policies is discouraged in general and is never allowed while using [company] equipment or during your working time.”

“If 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 that might constitute harassment or bullying.”

Practical Solutions

• Adopt Social Media Policy but be flexible

• Review it often and update with NLRB rules

• Train Employees on the policy

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© 2012 Pullman & Comley LLC

Developing a Workable Policy

• Be specific

• If you use words like “be respectful”, give examples

• Review and revise as appropriate

• Distinguish between management of social media for the company and personal use of social media

• Locking down sites is meaningless in light of cell phone adoption

• If you do monitor…..

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Other Laws in Play

• Conn. Gen. Stat. 31-51q – free speech protections

• Some states have off-duty conduct statutes

• Whistleblower protections

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Unintended Consequences

Streisand Effect

Photographed as part of effort to document coastal erosion

Property owner (Barbara Streisand) sued

Streisand lost suit and had to pay fees

Prior to suit …

➢ 6 downloads (2 by attorneys)

Post suit …

➢ Hundreds of thousands visits to site after suit filed ... Now has own page on Wikipedia

©2002 Kenneth & Gabrielle Adelman, California Coastal Records Project, www.californiacoastline.org [CC BY-SA 3.0 (https://creativecommons.org/licenses/by-sa/3.0)], via Wikimedia Commons

Company-Run Social Media

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Not Lovin’ It

SOCIAL MEDIA TERMS OF USE• All social media sites have terms of use and

use of the site constitutes agreement to the terms of use

• Terms will vary from site to site but all will address ownership and use of intellectual property posted by users

• Also generally will have rules of the road for acceptable content on the site

The rules often address what can / cannot be used or posted, including the intellectual property of others

• Don’t assume you have a right to materials posted by your employees; take steps to clarify this.

• Twitter: https://twitter.com/en/tos

• Facebook: https://www.facebook.com/terms.php

• Instagram: https://help.instagram.com/478745558852511

• YouTube:https://www.youtube.com/static?template=terms

• Snapchat: https://www.snap.com/en-US/terms/

• Pinterest: https://policy.pinterest.com/en/terms-of-service

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Clarifying Ownership

• CDM Media USA, Inc. v. Simms (N.D. Ill. 2015)

Employer used ex-employee for misappropriation

Employee was contact person for a special LinkedIn group

Employer wanted ownership transferred to a current employee; employee refused because it was not covered by employee agreement

Both parties agreed LinkedIn group not covered in any agreement or policy; there was no concrete proof of ownership so MTD denied

Takeaway: Policy + acknowledgment

Practical Steps

• Define scope of social media accounts

• Specify certain accounts owned by employer and agree that certain accounts are clearly personal in nature

• Consider specifying that use of company social media accounts within scope of employment will be as a “work made for hire” and that additional IP rights are assigned to employer

• Upon separation, employee must promptly transition accounts and provide access

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Cure For Workplace Zombies?

• What do we know?

• Can they be cured?

• Or are we only hoping to contain them?

• Talk about this and bring them back from the “dead”

Develop Your Own “Zombies”

• Some companies indoctrinate employees into a culture of business ethics

• “Protecting” our business has to be part of the mindset

• The “Jerry Maguire” version

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Stay on Top of Technology

• There shouldn’t be this notion that it is good to be a “luddite”

• Those in charge of the social media employees should be on top of things

• Be wary of third party outsourcing of your company social media

• Re-evaluate

Questions?

These materials have been prepared by Shipman & Goodwin LLP for informational purposes only. They are not intended as advertising and should not be considered legal advice. This information is not intended to create, and receipt of it does not create, a lawyer-client relationship. Viewers should not act upon this information without seeking professional counsel.