EPLI LITIGATION: ONE DEGREE OF

SEPARATION BETWEEN EMPLOYEES’ USE OF SOCIAL NETWORKING

AND EMPLOYERS’ EXPOSURES?

Introductions

MODERATOR: • Mercedes Colwin, Esq., Managing Partner, Gordon & Rees LLP PANELISTS:

• Sarah Goldstein, Esq., Partner, Kaufman Dolowich Voluck &Gonzo, LLP

• Catherine Padalino, Vice President, EPL Product Manager, Chubb Specialty Insurance

• Lisa A. Turbis, Esq., Senior Corporate Counsel, Litigation & Marketing, Autodesk, Inc.

• John S. West, Esq., Partner, Allred, Maroko & Goldberg

Agenda

• Social Networking Claims

• Company Practices and Procedures

• Preventing or Mitigating Effect of Social Media

• The Reputational Risk for your Company

Social Media Today

The Social Media Revolution

Social Media Today

Weblogs Commercial Websites

Industry Forums Industry Boards

• Improper Discovery of Personal Information

• Viewing of Employee Online Conduct and Company Liability

• Unlawful Invasion of Privacy

• Illegal Background Checks

What Constitutes a SocialNetworking Claim?

The Hiring Process

What Can be Used in the Hiring Process

• Experience

• Future Goals

• Google Information

• Online Editorials

What Cannot be Used in theHiring Process

• Age • Sex • Religion • Disability • Race/Color • National Origin • Pregnancy

Employers Rights vs. Lifestyle Statutes

• Political Activities

• Legal Use of Consumable Products

• Legal Recreational Activities

• Union Membership

The National Labor Review Board (NLRB)

The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees' rights

The Role of the NLRB

• Conduct Elections

• Investigate Charges

• Facilitate Settlements

• Decide Cases

• Enforce Orders

The National Labor Relations Act

(NLRA)Creates a right for private-sector employees to engage in concerted activities for the purpose of mutual aid or protection

The NLRA Section VII

• Defines what is a protected activity

• New report states certain policies regarding employees' use of the social media may violate Section VII

Company Practices and Procedures

Discriminatory Recruitment

Consideration given only to applicants with:

• Online profiles• Specific information on

their profiles • Social networking profiles• Large number of

friends/contacts

NLRB Provides Guidance for Employers on Social Media

Policies• Social media policies should be narrowly tailored • Should not prohibit “concerted activity” via social

media• Union and non-union employees alike are covered

by the NLRA

The Overly Broad Policy

Overly broad social networking policies include prohibiting: • the use of social media to post pictures• employees “making disparaging

comments”• engaging “in inappropriate discussions

about the company, management, and/or coworkers”

• employees from using the company’s name, address or other information

How to Narrow SocialNetworking Policies

• Should be clear and understandable

• Policies should be narrowly drawn

• Put employees on notice of a social media policy’s coverage

• Limiting language

Social Networking Policies

• Indentify acceptable and unacceptable uses of social media

• Minimize negative reactions

• Specify easy-to-understand guidelines and require employees to meet them

What is Acceptable Policy?

• Personnel must post under their own name and write in the first person

• All individuals must not cite or reference clients, employees, members, or other affiliated persons or entities

• There is no expectation of privacy online

Recent Social Networking Claims

Fired Because of Facebook?

The LB&B Associate Firings

• Routine background check leaves 18 Navy Contractors jobless

• Provided no details of investigation

• “No Determination Made” assessment

• Information could be outdatedor wrong

• Employee unable to appeal

The Accenture Class Action

• International management consulting firm

• Accused of firing qualified individuals with criminal records

• Criminal history has no bearing on position

• Discriminates against African Americans and Latinos

Martin Gaskell v. University of Kentucky

• Passed over to be director of Student Observatory

• Perceived to be critical of evolution in contrast with the University

The Preventing or Mitigating Effect of

Social Networking Claims

Third Party Vendor Searches

• Must Comply to the Fair Credit Reporting Act

• Protects Privacy

• Applicants Must Consent

Have Policies in Place

• Fair Hiring and Recruitment

• Training

• Discrimination and Harassment

• Employee Rights

• Narrow Social Media Policies

How can Social Media Affect my Company?

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Questions&

Answers

Many thanks to …

• Mercedes Colwin, Esq.

• Sarah Goldstein, Esq.

• Catherine Padalino

• Lisa A. Turbis, Esq.

• John West, Esq.