Southern Tier Association for Human Resources

Legal Aspects Relating to Social Media in the Workplace

January 11, 2012

Colin M. Leonard, Esq.

Bond, Schoeneck & King, PLLC Attorneys at Law Since 1897

WHAT ARE THE WORKPLACE CONCERNS?

Where to begin…

•  Can I search social media content as part of the hiring process?

•  Can/should I access/monitor employee social media posts?

•  Can I discipline/terminate employees for what they say/do on social media?

Can I use search social media content as part of the hiring process? •  Yes. •  However, there are some legal concerns of

which you should be aware. Namely: –  Title VII –  ADEA –  ADA –  NLRA –  FMLA –  GINA –  NYHRL

•  56% of employers use social media to screen potential job candidates* –  Up from 34% in 2008 –  20% plan to use social media in the future

•  What is being searched?

* 2011 Society for Human Resource Management Survey

Facebook – 58% Twitter – 42% LinkedIn – 95% Other –6% MySpace – 3%

Use of Social Media in Hiring

Inappropriate photos/information 53%

References to drug/alcohol abuse 44%

Negative comments about previous employers/clients/coworkers

35%

Poor communication skills 29%

Discriminatory comments 26%

Misrepresentations about job experience 24%

Confidential information concerning previous employer 20%

* June 2009 CareerBuilder Survey

What Caused Employers to NOT Hire a Candidate

Can/should I access/monitor employee social media posts? •  Yes. •  However, there are legal concerns that you

should be aware of. Namely: –  Electronic Communications Privacy Act –  New York Wiretapping Law –  Stored Communications Act

•  Electronic Communications Privacy Act –  Prohibits intentional, unauthorized, interception and

access of wire, oral or electronic communications (including e-mail)

•  New York Penal Law Section 250 –  Wiretapping Law (Class E felony) –  Prohibits monitoring, intercepting or accessing electronic

communications without consent of one of the parties

Electronic Communications Privacy Laws

•  Consent to –  Intercept, monitor, access, disclose –  Voice mail, telephone, e-mail, Internet, computer files

•  May be express and/or implied

Consent is Key

•  Prohibits intentional and unauthorized access of wire or electronic communications while in electronic storage

•  Does not apply to: –  Provider of wire or electronic communications service –  User of that service

•  Employee may have privacy claim where an employer accesses a restricted social network

Stored Communications Act

Case Study •  Employee creates and maintains MySpace account to “talk

about all the crap/drama/and gossip occurring in our workplace, without having to worry about outside eyes prying in”

•  Access by “invitation only” and given to select coworkers •  Managers hear of MySpace account and ask coworker with

access to provide his login information •  Managers use coworkers access information to access

forum •  After viewing the forum and its discussion of sexual and

criminal acts and fantasies pertaining to coworkers and customers, employee was fired

(cont’d)

Legal Concerns

•  Did the managers have the right to gain access in this manner? –  Did the coworker freely share the login information? –  Did the coworker have the authority to share his/her

access to the managers?

Can I discipline/terminate employees for what they say/do on social media? •  Yes. •  However, there are some legal concerns you

should be aware of. Namely, the National Labor Relations Act’s protection of protected, concerted activity.

Employee Discipline for Social Media Conduct •  24% of employers have disciplined an employee

for violating social media policies –  Up from 17% in 2009

•  11% of employers have “dooced” an employee –  Up from 9% in 2009 *2011 Proofpoint Outbound/DLP Study for E-mail Security

•  Section 7 provides that employees “shall have the right . . . to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .”

•  Section 8 makes it an unfair labor practice for an employer –  “to interfere with, restrain, or coerce employees in the

exercise of the rights guaranteed in [Section 7] . . .” or –  “to discharge or otherwise discriminate against an

employee because he has filed charges or given testimony under this subchapter . . . .”

NLRA

NLRB Action – To Date

•  Fielded 129 cases involving social media •  Reviewed 117 charges •  Issued 4 complaints •  In August, Office of the General Counsel issued

a 23-page report concerning NLRB social media cases

When is a social media post protected? •  When it is posted by a nonsupervisory

employee; and •  Constitutes protected, concerted activity.

Concerted Activity •  Activity is concerted when an employee acts with

or on the authority of other employees, and not solely by and on behalf of the employee himself.

•  Considerations: –  Did the employee appeal to co-workers for assistance? –  Did employees discuss the issue before or

contemporaneous with the online posting? –  Did employees raise the concern with management

(online or off)? –  Was there an online discussion with coworkers?

Protected Activity •  Protected activity includes a broad range of

conduct that relates to “wages, hours, working conditions, and other terms and conditions of employment”, or banding together for “mutual aid or protection”.

Does protected, concerted activity ever lose its protection? •  Yes. •  Activity may lose its protection if it is “opprobrious” or “disloyal, reckless, or maliciously untrue”.

•  Considerations: –  where the discussion occurred (i.e., in the workplace) –  subject matter of the discussion –  nature of the outburst –  whether the outburst was provoked by a ULP by the

employer

Lawful or Unlawful?

•  Five employees engage in a discussion on Facebook regarding job performance and staffing level issues, after one of the employees requested assistance in preparing for an anticipated meeting with management about these topics.

•  Employer terminated all five employees. → NLRB found:

→ discussion was “textbook” concerted activity → activity was protected because it related to terms and

conditions of employment → swearing in posts was not sufficient to cause the post to lose

protected status (cont’d)

Lawful or Unlawful? •  Employee car salesman posts photographs and sarcastic

commentary on Facebook criticizing the “less than luxurious” food and drink served by his employer, a luxury car dealership, at a kickoff sales event.

•  Employer terminated the salesman. → NLRB found:

→ termination was unlawful. → conduct was protected as it related to impact of “cheap” car dealer on

commissions → conduct was concerted as employee was vocalizing sentiments of co-

workers about commissions, that were previously expressed at a meeting regarding planning for the event.

Guiding (Yet Fluid) Principles •  Social media posts by nonsupervisory employees

concerning a workplace concern that generate comments by other employees will likely be protected.

•  Even if no other employees respond, the post is likely to be found protected if: –  the post is on a site designed to be seen by fellow

employees, –  there is a clear intent to initiate or further group action,

and/or –  the issues has been presented to management and/or

discussed with fellow employees. (cont’d)

Guiding (Yet Fluid) Principles

•  Purely personal gripes or posts directed at nonemployee relatives/friends, even about work-related issues, may not be protected.

•  Disparaging comments and profane, rude or vulgar language may be protected.

What do you need to do to address these concerns? •  Exercise extreme caution when disciplining/

terminating an employee for social media conduct.

•  Consult with counsel to insure compliance with applicable law.

•  Benefits – –  Builds stronger connections –  Stronger team results

•  Drawbacks – –  May learn information you never wanted to know

Supervisory Personnel “Friending” Subordinates

What do you need to do to address these concerns? •  Educate supervisory personnel •  Recommend personal/professional dichotomy

–  Personal – Facebook –  Professional - LinkedIn

Other Sources of Potential Liability •  Whistleblowing •  Defamation •  FTC Rule •  FLSA/Wage & Hour •  EEO Laws •  Distracted Driving

FTC Rules (Effective December 1, 2009)

•  If an employee posts a blog about an employer’s products or services, the employee must disclose his or her relationship to the manufacturer as it will “likely effect the weight or credibility of the endorsement.” –  In 2009, NY Attorney General received $300,000 from a cosmetic

surgery operation where employees pretended to be satisfied customers who experienced great results.

•  Take Aways – –  if employees permitted to blog about employer’s product or service,

require clear and conspicuous disclosure of relationship to employer.

–  Employees should be required to disclose that they are not authorized to make statements on behalf of the employer, unless they have been designated.

–  No “astroturfing,” i.e., encouraging employees to make artificial claims of falsely positive information.

FLSA/Wage & Hour Concerns

•  Accessing employer’s network from home or through mobile device may be working time

•  Take Aways: –  Exercise caution granting such access to nonexempt

employees –  Establish policy to address nonexempt employees

performing work outside scheduled hours

•  Anti-discrimination laws implicated where: –  adverse employment decision is based on protected

status •  access to this information could taint otherwise

defensible decision –  social networking used to harass employees

•  Anti-retaliation laws implicated where employee utilizes social media to informally protest or oppose discriminatory practices

EEO Laws

OSHA’s “Distracted Driving” Campaign •  OSHA has announced it will issue a citation to any

employer that “requires texting while driving or who organizes work so that texting is a practical necessity.”

•  Fines could be as high as $7,000 for a serious citation, or $70,000 for a willful citation. ü Take Away - Inform employees through your handbook

or a separate written policy that texting while driving – either company vehicles or personal vehicles using company-issued phones – is strictly prohibited.

Social Media Are You Prepared?

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