Social Media andEmployee Privacy ClaimsPresented by:David E. Gevertz

Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.3414 Peachtree Road, NEMonarch Plaza, Suite 1600Atlanta, GA 30326 Email: dgevertz@bakerdonelson.com

©2012 Baker, Donelson, Bearman, Caldwell & Berkowitz, PC.All rights reserved.

Road Map

• Types of social media/new technology

• Uses for employers

• Types of privacy claims available to employees

• How to protect yourself

A New World of Technology

• Facebook

• My Space

• LinkedIn

• Twitter

• Blogs/Discussion Boards

• Camera Phones

• Instant Messaging

• And the list goes on . . .

Benefits to Employers

• Hiring decisions

• Good source for candid look at employees

• Background information on witnesses, plaintiffs, etc.

• Can be used to counter emotional distress claims, sexual harassment claims.

How It Can All Go Wrong

Example: A representative (we’ll call him “Mr. Jones”) from a New York consulting firm (we’ll call the firm “ACME”) flew into Memphis to give a presentation at FedEx on social media. Perhaps forgetting about the dangers of using social media, he posted this message on Twitter:

“True confession – but I’m in one of those towns where I scratchmy head and say ‘I would die if I had to live here?’”

A FedEx employee who followed Mr. Jones on Twitter saw this and sent the following response and also copied FedEx corporate leaders as well as the chain of command at “ACME” consulting:

“Dear Mr. Jones, If I interpret your post correctly, these are your comments about Memphis a few hours after arriving in the global headquarters city of one of your key and lucrative clients and the home of arguably one of the most important entrepreneurs in the history of business, FedEx founder Fred Smith. Many of my peers and I feel this is inappropriate. We do not know the total millions of dollars FedEx Corporation pays ACME annually for the valuable and important work your company does for us around the globe. We are confident, however, it is enough to expect a greater level of respect and awareness from someone in your position as a vice president at a major global player in your industry. A hazard of social networking is people will read what you write.”

How It Can All Go Wrong

The Wiretap Act

• Makes it illegal to intercept or disclose intercepted telephone communications or other communications that can be heard unless an exception applies.

• Civil and criminal liability.

• Consent Exception: If one of the parties has given prior consent, no liability.

• Business Extension Exception: Applies for equipment furnished by service provider in connection with such service and when used in the ordinary course of business.

• However, BE CAREFUL relying on consent. What does your consent form actually say?

The Electronic Communications Privacy Act (ECPA)

• Amended the Wiretap Act to apply to electronic communications in transit.

• Prohibits the interception or disclosure of wire, oral, or electronic communications while in transit including in some instances, employer monitoring of wire and oral communications.

• The ECPA was then amended by the Stored Communications Act to protect electronic communications in storage.

• Again, prohibits unauthorized access and exceeding authorization given.

ECPA(cont’d)

• Allows for private right of action by employee.

• Plaintiff must show that he or she had a reasonable expectation of privacy as a threshold requirement for protection.

• Exceptions for consent, in the ordinary course of business and for providers of electronic communication services.

Recommended Best Practices:

• Do not record conversations or view personal electronic communications, without consent. Even though some exceptions apply for businesses, still get consent first.

• Include a policy in the Employee Handbook that states that emails, etc. used by Company’s employees are Company property and employee consents to search and disclosure of same by Employer. Obtain signed acknowledgements of same if you truly intend to monitor employee communications.

• Do not view personal email account or social media account usage requiring a password, even if it is on Company equipment without talking to an attorney first.

Other Types of Employee Claims

• Appropriation of Name or Likeness

• Intentionally taking another’s name or likeness for your own benefit, without consent.

• Statutory claim in Tennessee under the Tennessee Personal Rights Protection Act.

• Think of using an employee’s likeness in advertising without his or her permission.

Other Types of Employee Claims

• Public Disclosure of Private Facts

• When a person gives publicity to a matter concerning the private life of another.

• The matter publicized must be highly offensive to a reasonable person and not of a legitimate concern to the public.

• Unclear when a matter has been publicized.

Other Types of Employee Claims

• Intrusion Upon Seclusion

• Intentionally intruding, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns.

• Only if the intrusion would be highly offensive to a reasonable person.

• Any time an employer pries too far into the private life of an employee.

Other Types of Employee Claims

• False Light

• Occurs when a person places inaccurate information about another before the public, if the information causes that person to be perceived in a false light.

• Must be highly offensive to a reasonable person.

• Defendant must act with knowledge of falsity or reckless disregard for the truth.

Defamation

• Plaintiff must show (1) a false and defaming statement concerning the plaintiff; (2) unprivileged publication to a third party; (3) fault of at least negligence; and (4) damages.

• Any publicized false statement that harms a person’s reputation.

• Applies to statements of fact Truth and consent are defenses.

• The level of fault depends on whether the person who has been defamed is a public figure and whether the subject is a matter of public concern.

• Some privileges apply.

Recent Federal Trade Commission Guidelines on Employee Endorsements

• Can hold employers liable for employee “endorsements.”

• Liability for unsubstantiated claims even if employer has no knowledge of the endorsement and has not given permission. Also provides liability for failing to disclose connection between endorser and advertiser.

• “Endorsement” is any statement consumers are likely to believe reflects the opinions, beliefs, experiences, etc. of a party other than the advertiser.

• Problems occur when employees comment about a company’s product or services in a public forum, e.g. a blog or social media site, without identifying their affiliation.

SECTIONS 7 AND 8 OF THE NATIONAL LABOR RELATIONS ACT (NLRA)

• Multiple recent Unfair Labor Practice Charges filed against non-unionized companies for disciplinary action against employees who posted comments about their work environments online.

• National Labor Relations Board (NLRB) believes that such communications are statutorily “protected concerted activity” and disciplinary action by company constitutes an “unfair labor practice” under the NLRA.

• NLRB has also filed Charges with respect to companies’ social media policies under Sections 7 and 8, deeming some overbroad and "tending to chill employees in the exercise of their Section 7 rights."

Scenario #1: Your employees want to talk about you online.

• Problems: How do you stop it? Can you discipline them? What if it is anonymous?

• Consider court’s ruling in Pietrylo v. Hillstone and recent NLRB Charges brought against employers who terminated employees based on comments regarding their work environment.

Scenario # 2: Hiring

•Can you use social media in hiring decisions? What are the risks? Is it worth it?

•Consider the potential for a disparate impact claim.

LinkedIn User Demographics

Caucasian

AfricanAmericanHispanic

Scenario # 2: Hiring (cont’d)

• HR Manager posts job opening on Employer’s Facebook site? Any problem?

• HR Manager only uses Facebook to post certain positions. Any problem?

• HR Manager checks Jane applicant’s MySpace page prior to hiring. She only does this some of the time. Any problem?

• HR Manager “friends” Jane on Facebook to see more of her profile. Any problem?

Scenario #3: You search a terminated employee’s computer for information to use in her lawsuit against you.

• You are able to view personal e-mails from non-work e-mail accounts that was accessed at work and on the Employer’s computer. You have a strong policy regarding no right to privacy. Any problem?

• You come across attorney-client communications. Any problem?

• Compare Stengart v. Loving Care and Holmes v. Petrovich Development Co.

Scenario #4: You view an employee’s MySpace page and it contains references to drug use.

• Can you terminate him?

• Can you make him undergo a drug test?

Company Best Practices- How to Protect Yourself

Consider the various ways social media can be incorporated into your already existing policies:

• Harassment and Discrimination Policies.

• Ethics Policies.

• Confidentiality/Trade Secret Agreements and Policies.

• Electronic Equipment/Internet Usage Policies.

• Marketing Policies and Procedures.

• Hiring/Applicant Screening Policies and Procedures.

Also be sure to incorporate this topic into your new hire training.

HR Best Practices- How to Protect Yourself

• Be careful using social media in hiring. Equate the content viewed with questions asked in an interview.

• Screen applicants in a uniform manner.

• For current and prospective employees, ask yourself if the information is worth the risk BEFORE you look.

• Be careful who you friend, what you tweet, and what pictures you are in. As a general matter, we do not recommend “friending” subordinates.

• Do not access password-protected personal accounts without written permission. As a general matter, do not ask for permission.

• Never look at attorney-client communication even if it is on an employer-provided computer.

Marketing Best Practices- How To Protect Yourself

• Don’t use a “head in the sand” approach to social media.

• Actively monitor the content of your social media sites, especially if the company name is on it.

• Try to avoid posting about employees and customers on social media sites.

• Address employee “endorsements” in your company policies to avoid potential FTC violations.

Company Best Practices- Recommendations on Policy Drafting

• Policies should not include blanket prohibitions of social media.

• Require the use of “disclaimers” by employees using Company equipment.

• Prohibit endorsements where employee does not identify their company affiliation.

• Address employees’ expectation of privacy. Clearly state that emails, etc. used by Company’s employees are Company property and employees consent to monitoring, search, and disclosure of same by Employer. Consider signed acknowledgements.

• Address postings on company-sponsored websites, blogs and social media networks both at and away from work. However, employers must be careful that such policies are drafted so as not to limit expression that could be considered protected under the National Labor Relations Act.

• Address co-worker “friending.” As a general rule, managers and supervisors should not send “friend” requests to subordinates. Additionally, any employee should be allowed to reject a friend request from any other employee without fear of repercussion.

• Instruct employees not to use the company’s logo, trademark or proprietary graphics, or photographs of the company’s premises or products on social networking sites without prior approval.

REMEMBER THAT THE RULES ARE “UP IN THE AIR.” DO YOU WANT TO BE THE TEST CASE?

For more information contact :

David Gevertz

Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.Monarch Plaza, Suite 1600 3414 Peachtree Rd., N.E. Atlanta, Georgia 30326

Email: dgevertz@bakerdonelson.com