USING SOCIAL MEDIA FOR HIRING, DISCIPLINE & DISCHARGE DECISIONS

Jennifer S. Walther

Mawicke & Goisman, S.C.

1509 N. Prospect Avenue

Milwaukee, Wisconsin 53202

(414) 224-0600

jwalther@dmgr.com

Various Types of Social Networking

Facebook®MySpace® LinkedIn®Twitter®BlogsFlickr®HootSuite®

Social Media Stats1.15 billion active monthly

Facebook users as of June, 2013.500 million active registered

Twitter accounts.225 million registered LinkedIn

members.

25% of employers have terminated employees for misuse of e-mail or the internet.

82% of employees worked or contacted offices through laptops, tablets and cell phones while on vacation.

20.1% of employers have been ordered by court or agency to produce employee e-mails.

Proposal to add “Internet Addiction” as a recognized mental disorder in DSM-V.

Employer LiabilitiesNational Labor Relations ActDiscrimination and Harassment

ClaimsFair Credit Reporting Act Fair Labor Standards ActGINAStored Communications ActPrivacy claims

HIRING

Discrimination claimsEvidence of what employer knew

before hire

GINAProhibits making adverse employment

decisions based on genetic information.

Facebook post reveals GINA information◦“I’ve been really sick since September. Full

body muscle weakness to the extent that just walking difficult, stairs impossible, and I even need a neck brace to hold my head up,”

◦“I just was diagnosed two days ago with a rare form of Lupus called ‘Lupus Myelitis’”

DISCIPLINE/DISCHARGE

Taco Bell employee fired(photo posted on Taco Bell Facebook page)

Burger King employee fired after photo posted

Burger King bath – youtube

REASONS FOR DISCIPLINE/DISCHARGE

Working on personal matters during work hours.

Use of company electronic systems◦Excessive use of company cell phones.

◦Excessive personal use of, or sending improper material over, company e-mail account.

◦Excessive, or improper, personal use of company internet.

Violation of company policy.

REASONSLegality of discipline/discharge

decision will depend on:◦How evidence of misuse is

discovered.

◦Whether policy claimed to be violated is lawful.

How evidence discovered.MONITORING

◦ Employer has the right to monitor employee’s Internet and email usage transmitted over company servers, and using company equipment, even if from home.

No right to monitor employee’s Internet use from home when not using company-owned property.

◦ If you find private communications on employer’s computer (through employee’s personal, password-protected, web-based email account), you can monitor and discipline, but you can’t confiscate emails.

◦ May not be able to monitor mobile devices—even if your company pays for them, because the information transmitted is not stored on your company’s servers, but rather on the wireless carrier’s servers.

How evidence discovered, cont.

STORED COMMUNICATIONS ACT

◦ Criminalizes intentional, unauthorized access to communications held in computer systems.

◦ If Facebook user uses Facebook’s security features and limits the visibility of their profile and posts, they have created a non-public profile/post which is covered by the SCA.

◦ Once covered, it is unlawful for an employer to access the information without authority or to exceed an authorization that was given.

Is Policy Lawful?NLRA

Prohibits employers from enacting policies that discourage or prevent employees from engaging in “concerted activity” for “mutual aid and protection.”

Don’t prohibit discussing wages or working conditions amongst fellow employees.

An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

Protected Activities under NLRA

Examples:◦ Facebook post with comments from co-workers.◦ Facebook “like”◦ Twitter discussion and retweets.◦ Blog discussion with comments.

Topics:◦ Information about wages.◦ Complaints about policies.◦ Complaints about managers.◦ Showing union support.◦ Attempting to organize a union.◦ Discussion of employment terms.

Policies, cont. Unlawful policies:

◦ Policy barring statements harming Company reputation, because employees could read as a ban on protesting employee treatment.

OK to limit prohibited conduct to malicious or obscene comments.

◦ Policy prohibiting unauthorized posting or distribution of papers and using social networking sites in a manner that could discredit or damage the employer.

◦ Policy prohibiting employees from disclosing confidential information using company resources unlawful where it failed to give examples.

◦ Policies prohibiting employees from making disparaging comments about the company or from engaging in unprofessional conduct online.

NLRA & Policies (cont’d)Example of approved language:

◦Prohibited use of social media to post or display comments about co-workers, supervisors, or the employer that were vulgar, obscene, threatening, intimidating, harassing, or in violation of the employer’s anti-discrimination and anti-harassment policies.

Employee forced to resign for offensive tweets

so he's a woman, but he still has Y chromosomes? now who doesn't understand how biology works?

A man who argues on behalf of feminism is a tragic figure of irony, like a Jewish Nazi.

aw, you can't feed your family on minimum wage? well who told you to start a f****** family when your skills are only worth minimum wage?

Tweeted picture of employee smoking marijuana

Employee Off-DutySocial Media Use

Employees have lower expectation of privacy about information in the public domain.

But, what is public?

◦ Employees who use social networking sites with private chat or messaging functions have greater expectation of privacy.

◦ Employer cannot use trickery to gain access to forums where employees post password-protected content.

If employer discovers evidence of policy violation through public postings, even though off-duty, can use as basis for decision.

News reporter fired for the following blog:

1. I’ve gone bra-less during a live broadcast and no one was the wiser.

…..

3. I am better live when I have no script and no idea what I’m talking about.

….

8. I’ve taken naps in the news car.

…

9. If you ramble and I deem you unnecessary for my story, I’ll stop recording but let you think otherwise.

10. I’ve stolen mail and then put it back.

OFF DUTY USE:PAY PRACTICES

Fair Labor Standards Act◦If employee required to maintain or

contribute to company-sponsored blog, time spent constitutes hours worked under FLSA.

◦The use of smartphones, e-mail, and other communication tools outside non-exempt employee’s standard workday may be compensable time.

Wisconsin ProposedSocial Media Law

Wisconsin 2013 Senate Bill 223

◦Unanimously passed in Senate.

Prohibits an employer from:

◦Requiring or requesting an employee/applicant to give user name, password, logon info for his/her personal Internet account.

◦Discharging/disciplining/refusing to hire any person for exercising their right to refuse such a request.

◦Retaliation for opposing such a practice.

Wis. Proposed Law (cont’d)

Employer is permitted to:

◦ Use information that can be obtained without code.

◦ Gain access to Employer supplied equipment or accounts.

◦ Restrict or prohibit employee’s Internet access on Employer paid equipment.

◦ Discharge or discipline for taking confidential information.

◦ Investigate violation of employer’s work rules or laws.

◦ Require an employee to disclose his/her personal e-mail address.

Be proactive!

Train employees on appropriate use of internet.

Place employees on notice regarding potential monitoring.

Obtain release from employee / potential employees for such searches.

Be consistent in disciplining for violations.

Written company policy addressing cyberspace issues.

Reducing Liability

States with Social Media Protection LegislationArkansasCaliforniaColoradoIllinoisMarylandMichiganNew Jersey

New MexicoNevadaOregonUtahVermontWashington

States Considering LawsFloridaGeorgiaHawaiiIowaKansasMaineMassachusettsMinnesota

NebraskaNew HampshireNew YorkNorth CarolinaOhioPennsylvaniaRhode IslandWisconsin

QUESTIONS?

Jennifer S. WaltherMawicke & Goisman, S.C.1509 N. Prospect AvenueMilwaukee, Wisconsin 53202(414)224-0600jwalther@dmgr.com