headache Social Media in the Workplace VEC 2019
- Slides: 40
#headache: Social Media in the Workplace VEC 2019 Employer Conference Randy C. Sparks, Jr. Kaufman & Canoles, P. C. kauf. CAN. com
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Reach of Social Media Sites Source: statista. com, 1/2018 kauf. CAN. com
Why be Concerned About Social Networking? • Use by employees – Employees may now communicate faster, to more people – Broad reach – Speed – Comments about workplace, supervisors, coworkers, clients or customers • Easy to hit send/post without thinking things through completely … kauf. CAN. com
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The Radio Jock Who Tweeted About "Dirty Mexicans" Photo Credit – www. rollingstone. com kauf. CAN. com
The Bankers Who Think ISIS Killings Are a Hoot kauf. CAN. com
Privacy Where do you draw the line? Is the expectation of privacy reasonable? kauf. CAN. com
So, Do Employees Have an Expectation of Privacy for Their Personal Social Media Accounts? kauf. CAN. com
Potentially Applicable Laws • • Electronic Communications Privacy Act Stored Communications Act Computer Fraud and Abuse Act Virginia Code § 40. 1 -28. 7: 5 kauf. CAN. com
So What Does This Mean? • No bright line rule • Fact specific inquiry • Language of company policy is instrumental to analysis • Courts may also look at implementation and enforcement history kauf. CAN. com
Cyber Spying or Screening Applicants? • Content that could cause employer not to hire applicant : – Provocative or inappropriate photographs – Comments, photographs about alcohol or drug use – Negative comments about previous employer, co-worker, customer or client – Demonstration of poor communication skills – Discriminatory comments – Misrepresentation of qualifications – Confidential information from previous employer • Develop process/procedure if going to do it! kauf. CAN. com
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Just Stupid … kauf. CAN. com
What If They Already Work for You? kauf. CAN. com
Fired for Off-Duty Activity? kauf. CAN. com
But, What About This One? kauf. CAN. com
Potential Social Media Risks kauf. CAN. com
Discrimination kauf. CAN. com
Discrimination • Heterosexual female employee posted photo and comments about man in a dress. • Employee claimed she was fired for the post because the President of her employer’s parent company is part of the LGBT community. • Employee sued for discrimination in violation of Title VII. DID SHE WIN? kauf. CAN. com
Harassment kauf. CAN. com
Retaliation kauf. CAN. com
Unfair Labor Practice Charges kauf. CAN. com
Unfair Labor Practice • NLRA protects “concerted activity” regarding terms or conditions of employment – “Concerted activity” = activity among employees, whether or not unionized • Employee may be protected when blogging or posting to social networking sites IF employee – Told co-workers about blog or site; – Discussed work environment or terms of employment; and – Allowed co-workers to post responses or comments kauf. CAN. com
Employee’s Facebook Post During a Break “Bob is such a NASTY MOTHER F**KER don’t know how to talk to people!!!!!! F**k his mother and his entire f**king family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” OK TO FIRE EMPLOYEE FOR POST? kauf. CAN. com
Defamation kauf. CAN. com
Non-Compete Violations? kauf. CAN. com
Federal Trade Commission Liability • The FTC has issued a guide, effective December 1, 2009, addressing concerns about deceptive practices generated through consumer-generated media and endorsements. • Must disclose material connection between endorser and seller of products. • Employee comments will likely be attributed to the employer. kauf. CAN. com
So, What Are Employers to Do in this New World of Rampant Social Media? kauf. CAN. com
Be Consistent When Disciplining • Avoid temptation to ignore violations by star employees • Provide serious discipline for serious violations (illegal activities) • Lesser discipline for less serious violations (excessive surfing) kauf. CAN. com
Manager-Subordinate “Friending” • • • Restrict managers from becoming “friends” with non-management employees and subordinates Disclosure of information by employee can put manager, therefore company, on notice about workplace claim General favoritism and discrimination kauf. CAN. com
Implement a Social Media Policy • Whether or not employees are permitted to use social media sites at work or on company computers, employers should have a clearly defined policy on the use of social networking sites by employees. • One in four employers block employee access to social networking sites during the workday. Many view the sites as “social notworking” sites. • Blocking may not be adequate because employees can bypass with cell phone. • 8% of companies encourage employees to use social networking sites and 10% admit that they are invaluable marketing, networking, and sales tools. kauf. CAN. com
What to Include in A Policy on Employee Use of Social Media Sites • • • Use is subject to all existing company policies, including email and internet policies, confidentiality policies, and workplace harassment and discrimination policies. Employees must be respectful of the company’s products and services. Employees must not disclose confidential or proprietary company information or information about clients. kauf. CAN. com
Employee Use of Social Media Sites • Employees must state that they speak for themselves and not their employer. – Employees should be restricted from using trademarks, logos or copyright protected material. – Employees should not use their company email address. – Employees should not be seen in employer identifying items or uniforms. – Employees should not be permitted to give recommendations or references for coworkers or subordinates on Linked. In or other sites. kauf. CAN. com
What to Include in Policy on Employee Use of Social Media Sites • Employees should expect compliance monitoring and have no expectation of privacy in publicly shared material. • A reminder that internet use is not anonymous nor is anything posted ever completely gone. • Specifically prohibit use that may infringe the intellectual property rights of another. • Prohibit managers “friending” subordinate employees. • Include language that says that the policy does not prohibit activity protected by Section 7 of the NLRA. kauf. CAN. com
Red Herrings • Do not hesitate to ask employee to remove anything from a social networking site that might have detrimental impact on image of your organization • Do not listen to arguments about First Amendment rights unless you are truly a “State Actor” kauf. CAN. com
Questions? kauf. CAN. com
Thank You! Randy Sparks rcsparks@kaufcan. com (804) 771 -5709 kauf. CAN. com
