Privacy, Social Media and Employment Law in the Workplace

Privacy, Social Media, and Employment Law in the Workplace
Kenan L. Farrell Intellectual Property and Technology Law
kfarrell@klflegal.com






www.KLFLegal.com Indianapolis, Indiana - March 6, 2012 AGENDA Balancing an employer's right to know vs. employee privacy
Wireless devices and employee and employer privacy violations: monitoring and creating policies regarding electronic communications
Use of social network sites in the employment context; risks, best practices and policies to minimize employer risk
Off the job behavior, e.g. blogging and dating
Case law studies Social Networking Social networking - the grouping of individuals into specific groups
Has gone on almost as long as societies themselves have existed “Informal conversation is probably the oldest mechanism by which opinions on products and brands are developed, expressed, and spread.” Business-oriented

Users maintain a list of contact details of people they know and trust in business

Get introductions and referrals through mutual, trusted contacts

150 million users spanning 200 countries

Over 1 million Linkedin groups

Employees will use it to look for other jobs

Competitors will research your business Who is using social networks? CEOs of major corporations
Small business owners
Celebrities
Employees
Customers
Journalists
Everybody The use of social network sites in the employment context Promote products and services
Find employees
Disclose information
Receive customer feedback
Respond to negative publicity
  How Companies are using Social Networking Enhanced communications tools
Document sharing
Virtual workspaces

Facebook Pages, Facebook Groups, Google+ Chat, Linkedin Groups
Google Shared Spaces, Salesforce Whose computer is it? Monitoring Internet and e-mail The First Amendment does NOT protect an employee from being monitored, disciplined or terminated for violating a clear and reasonable social media policy.
Employees have NO absolute Constitutional right to privacy in the workplace (4th Amendment on searches and seizures does not apply) Wireless devices and employee and employer privacy violations Policy should reduce any expectation of privacy on the organization’s computers, email systems, blackberry, telephone/voicemail systems and any of the data on these systems by:

Making sure employees know that certain information exchanged on social networking sites can be monitored and accessed by the organization
Expressly stating: no expectation of privacy, even with personal use and when telecommuting
Reserving right to remove content without notice
Reminding employees about privacy settings Drawbacks & Risks
Loss of productivity

Data theft fears (confidential or proprietary info revealed)

Liability risks if online comments turn up in lawsuits

Corporate image concerns Insurance Policies Implement Monitoring Program Off the job behavior, e.g. blogging and dating American Academy of Matrimonial Lawyers released a report citing divorce lawyers had found an increase by 81% in the use of social-networking site evidence in the past five years. Collection of policies online







http://socialmediagovernance.com/policies.php Make sure that policy complies with these associated laws:

Electronic Communications Privacy Act (Wiretap – consent and business exceptions)

Stored Communications Act (improper access of electronically stored information)

Federal Trade Commission Guidelines (false advertising and misleading sales pitches)

NLRA (section 7 rights of employees for concerted activity) DON’T Discriminate or harass
Divulge confidential information
Endorse company’s product without appropriate disclosures
Insult other companies
Share personal info of customers DO Stop and think
Assume public will see it
Employee provide current list of sites to Employer
Use appropriate disclaimers – “any opinions expressed are the employee's own and not the company”
Use privacy settings
Preserve confidentiality
Monitoring and creating policies regarding electronic communications
Analyze Usage
Set Rules
Train Employees
Enforce Employer risks with using social networking sites for employment decisions; NLRB ruling protects employees who engage in "concerted activity," which often includes the right to discuss the terms and conditions of their employment with co-workers and outsiders
Whistleblower laws protect employees who complain about (among other things) potential securities fraud violations

Aimed at preventing:
False testimonials
Unsolicited endorsement FTC Guidelines Employer   should  not  be  held  liable if:  
 the  employer  has  a  social  media  policy   concerning  the  "social  media  participation"  of  its  employees;  and  
the  established  company   policy adequately  covered  the  "rogue"  employee's  conduct. Have a training session at your office.
Have a contact person at your office for all social media issues and up-dates.
Put social media in your advertising budget.
Put social media on your staff meeting agenda.
Draft social media policy in accordance with current laws. Tips to start using Social Media Personal and Business

Facebook has more than 845 million active users. 58% of these active users log on to Facebook in any given day. The largest demographic is 35 years and older, now with over 30% of the entire Facebook user base. Almost 72% of all US internet users are on now Facebook.

Over 200 million people access Facebook via their mobile phone.

In just 20 minutes on Facebook over 1 million links are shared, 2 million friend requests are accepted and almost 3 million messages are sent. Personal and Business

Consists of 140-character status updates - "Tweets"

Twitter has over 200 million users, generating 1 billion tweets per week

52% of users update their status every day. 24% of users check Twitter several times a day

24% of current customers follow that brand on Twitter National Labor Relations Board Acting General Counsel continues to follow the view that employees using social media to engage in protected concerted complaints about their employment are protected by the National Labor Relations Act, whereas social media use by employees to simply voice “individual gripes” does not constitute protected activity.

The report also provides useful guidance for employers drafting social media policies on the type of language that the NLRB’s Division of Advice considers unlawful. Discharge for Facebook Comments and For Violation of Non-Disparagement Rule Was Unlawful

Discharge for Facebook Comments Was Lawful, But Social Media Policy and No-Solicitation Rule Were Overly Broad

Work Rules Were Overbroad, But Discharge Under Rules Was Lawful Because Employee’s Facebook Posts Were Not Protected

Employer’s Social Media Policy Was Overbroad, But Employee’s Facebook Posts Were Not Protected

Portions of Employer’s Communications Systems Policy Were Overbroad

Employer’s Initial Social Media Policy Was Overbroad, But Amended Version Was Lawful

Provisions in Drugstore Operator’s Social Media Policy Withstand Scrutiny Employee Was Unlawfully Discharged for Her Facebook Complaint About Reprimand

Employees’ Facebook Postings About Supervisor and Promotion Selection Were Protected Concerted Activity

Employee’s Facebook Postings About Manager’s Attitude and Style Were Protected Concerted Activity

Employee’s Critical Online Postings Were Protected Concerted Activity That Did Not Lose Act’s Protection

Employee’s Facebook Postings About Irritating Coworker and Workplace Incident Were Not Protected

Truck Driver Was Not Engaged In Concerted Activity and Was Not Constructively Discharged

Employee’s Facebook Criticism of Supervisor Was Venting and Was Not Concerted https://www.nlrb.gov/operations/om-memoranda-0 National Labor Relations Act of 1935 https://www.nlrb.gov/operations/om-memoranda-0 Personal and Business

Over 3 billion videos are viewed a day

48 hours of video are uploaded every minute, resulting in nearly 8 years of content uploaded every day

800M unique users visit YouTube each month

Over 12 million people are connected and auto-sharing to at least one social network

100 million people take a social action on YouTube (likes, shares, comments, etc) every week FTC Guidelines Concerning Use of Endorsements and Testimonials in Advertising DO Stop and think
Assume public will see it
Employee provide current list of sites to Employer
Use appropriate disclaimers – “any opinions expressed are the employee's own and not the company”
Use privacy settings
Preserve confidentiality DON’T Discriminate or harass
Divulge confidential information
Endorse company’s product without appropriate disclosures
Insult other companies
Share personal info of customers