Social Media Today!
The Legal & Ethical Risks and
Requirements
for Employers and Managers
Willow Misty Parks
Anderson School of Management
University of New Mexico
Albuquerque, NM
© 2014 The Business Bookshelf, LLC &
Willow Misty Parks
IMPORTANT NOTICE
• General Legal Information;
NOT Legal Advice
• This presentation is NOT legal advice or
legal representation.
• This presentation sets out general
concepts and some of the basics regarding
social networking.
• Anyone determining that they need legal
advice or representation should seek
counsel from an attorney or law firm.
Significance of Social Media to Business
• Important to businesses!
• Violations of others’rights can be costly, even if done
by an employee of the company
• What every employer and manager should know
– Understanding the basics
– Key challenges and risk factors for employers
– How to address potential abuse or misuse
– Prepare to design legal and effective Social Media Policies
in the workplace
Significance of Social Media to Business
• A 2012 report by SilkRoad Technology revealed that
75 percent of employees access social media daily
on the job, with 60 percent doing it multiple times per
day.
• Almost half the respondents indicated that connecting
with co-workers was the top reason to use social
media at work.
• Only 23 percent of the employees, however, had
received a social media policy from their employers,
and fewer than 10 percent had received social media
training.
Significance of Social Media to Business
• Social media in the workplace
• There are only 48.3% of companies that allow their
employees access to social networking that doesn’t
involve business.
• 26.7% of companies allow a selected group of employees
to have access to social networking, and only a quarter of
all companies ban social networking.
• Companies have implemented policies for the use of
social networking. This is to keep employees from talking
about company business. Some employees do not realize
they say anything wrong when talking about their jobs
online.
Current Issues
• Whether businesses block, monitor, or have
policies on social media use in the workplace
• Some companies have blocked certain social
media websites
– 1. It could alienate younger employees.
– 2. It suggests mistrust.
– 3. It shows lack of support.
Current Issues
• Two main benefits of social media: enhanced
communication and advanced methods of
collaboration.
• Companies are taking into consideration
implementing their own internal social media, such
as Microsoft’s Share Point to encourage team
collaboration.
• Some 46% of global information workers say using
social tools has increased their productivity.
Current Issues
Why Your Company Needs a Social
Media Policy
• 67% of online adults are now using at
least some form of social networking
What is “Social Media”?
• Social media is defined as:
– …media for social interaction, using highly
accessible and scalable communication
techniques.
– …the use of web-based and mobile
technologies to turn communication into
interactive dialogue.
What is “Social Media”?
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MySpace
Facebook
Friendster
LinkedIn
Twitter
Skype
Texting
WhatsApp
• Blogs
• Digg, Reddit,
Technorati
• YouTube
• Unvarnished
• Instant Messaging
• Snapchat
• Line
Social Media in the News
• Do Your Social Media Policies Run
Afoul of the First Amendment?
• Social Media Sparks Policy Debate
• Employer Access to Social Media
Usernames and Passwords
• Even if It Enrages Your Boss, Social Net
Speech Is Protected
How Employees Use Social Media
• Job search
• Communication—with other employees,
clients, vendors, customers
• Researching products, services,
employers
• Spreading the word about a product or
service
• Criticizing the job, the boss, or co-workers
Benefits to Business of Social Networking
• Building business relationships and
rapport
• Employee engagement
– Allow employees to communicate with
consumers over social networks
– Internal social networks like Yammer can
help employees to communicate with each
other
Benefits of Social Media
• Employees use social media as a way to relieve
stress during a break and to rejuvenate, which
increases productivity.
• Now employers are faced with new challenges
regarding the laws and policies surrounding social
media in the workplace.
• These issues seem to be unclear in many
companies. Putting a policy into place to protect the
employer as well as the employee is fundamental
with the increasing changes in the workplace.
Social NOT-working?
• How many working hours are lost?
 50% of Facebook users log on every day
• 22% visit social networking sites 5+ times/week
 Only 52% of employees say they don’t use social
networking sites during work hours
 And that’s not counting time spent texting, instant
messaging, surfing, making phone calls, etc. …
Beneficial or Social NOT-working?
• A recent study conducted by Evolv
shows hourly employees who use social
media are actually more productive
than their non-social counterparts.
• And this productivity goes up with the
more social networks an employee
frequents.
Beneficial or Social NOT- working?
• A wholesale block of social media might
actually be harmful to talent attraction
• A 2012 survey found two out of five Gen
Y workers rate social media access
above receiving a higher salary.
Employees’ Views of Social Media
• Survey says:
 53% of employees say their social networking pages
are none of their employers’ business
 74% say it’s easy to damage a company’s reputation
on social media
 15% say that if their employer did something that they
didn’t agree with, they would comment about it online
Online Outlets for Disgruntled Employees
www.workrant.com
www.fthisjob.com
www.rantasaurus-rex.com
Employers’ Views of Social Media
• 40% of business executives surveyed disagree that
what employees put on their social networking pages
is not the employer’s business
• 30% admit to informally monitoring social networking
sites
Information That Can Be
Found on Social Networking Sites
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Education
Hobbies
Vacation Photos
Birthdates and age
Religion
Links to profiles of
friends
• Health and disability
history
•
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Work history
Favorite music
Party photos
Links to blogs
Career interests
Family information
Political views
Favorite movies
Social Media and Key
Legal Risks for Employers
 Negligent hiring/supervision
 Discrimination/harassment/retaliation
 Disclosure of trade secrets or proprietary
information
 Reputational harm to employees
 Reputational harm to employers
 Monitoring and privacy issues
 Legal constraints on employee discipline regarding
social media use
Risks for Employers
• Using the Web to Make Hiring
Decisions
– Many employers and job recruiters check
out potential employees on the Web
• Using search engines such as Google or Yahoo, and
internet sites such as PeopleFinders.com,
Local.Live.com, or Zillow.com
– Some studies show more than half of
employers use some kind of screening on
social networking sites
Risk Factor: Employee Use
Risk Factor: Discrimination, Harassment and
Retaliation – Employee Use of Social Media
– Electronic communications offer
opportunities for misuse
– Can be used as evidence to support a
harassment or discrimination claim
Risk Factor: Negligent Hiring,
Supervision, Retention
An employer may be held liable for an
employee’s wrongful acts if the employer
knew or had reason to know of the risk
the employment created
•Doe v. XYC Corp., N.J. Super. 122 (2005)
– Employee was criminally charged with child
pornography using a workplace computer
– Court held employer had a duty to investigate and
respond
Risk Factor: Discrimination, Harassment,
Retaliation – Employer Use of Social Media Info
• Social networking sites, blogs, etc., may contain information
about an applicant’s
– Age
– Race
– National origin
– Disabilities
– Sexual orientation
– Religion, etc.
• Difficult to prove employer did not rely on this information
once known
• Is it the truth?
– Information may be inaccurate or outdated
Risk Factor: Discrimination, Harassment and
Retaliation – Employee Use of Social Media
• Electronic communications offer opportunities for
misuse
• Can be used as evidence to support a harassment or
discrimination claim
• Blakely v. Continental Airlines, Inc., 164 N.J. 38
(2000)
– Alleged harassment via “Crew Member Forum”
– Company has duty to take effective measure to stop the
conduct once it knew or should have known harassment was
taking place
Risk Factor: Reputational
Harm to Employees
 Defamation – plaintiff must prove defendant
published a false statement about plaintiff that tends
to harm plaintiff’s reputation
 Employer can be liable if the employee had
apparent authority to speak on its behalf – Beware
of personal references!!
Risk Factor: Reputational Harm to
Employers
• Employees posting videos and photographs
damaging to company’s image
– Domino’s, Burger King, KFC
• Former employee slamming company’s
system with disparaging e-mails
– 200,000 e-mails sent to 35,000 Intel employees complaining
about former employee’s treatment by Intel
• Former employees “cyber-smearing”
employer
– Result: $775,000 compensatory and punitive damages
award against former employees
Defamation v. Non-Disparagement
• Non-disparagement clauses are
customarily used in settlement
agreements and severance contracts in
the employment law context.
• The temptation can be irresistible for
disgruntled former employees to trash
their former employer on social media
sites like Facebook, Twitter, or LinkedIn,
on blogs, by text or e-mail, or other
electronic means.
Risk Factor: Reputational
Harm to Employers
• FTC GUIDELINES
Guides make clear that employees who
use social media to post comments
regarding company products or services
without disclosing the employment
relationship might create liability for their
employers.
Potential liability may exist even if the
comments were not sponsored or
authorized by the employer.
Risk Factor: Business
Proprietary Information
• Intellectual Property Infringement
 Microsoft employee posted software upgrade
• Securities fraud/unfair competition
 Whole Foods CEO’s anonymous blogging criticizing
competitors led to unfair competition lawsuit and
FTC/SEC investigation
Risk Factor: Employee
Monitoring and Privacy
• Public sector employees – Fourth
Amendment in the U.S. Constitution
• Private sector employees – tort claims
Risk Factor: Employee
Monitoring and Privacy
• Key question: Did the employee have a reasonable
expectation of privacy in the electronic communication?
• Ensure monitoring is:
• based on legitimate needs, and
• limited in scope to achieve those needs
• Attorney-Client Privileged Information
Risk Factor: Employee
Monitoring and Privacy
 Courts are more likely to rule for the employer if:
o Employer owns the computer and e-mail system
o Employee voluntarily uses an employer’s network
o Employee has consented to be monitored (usually
based in written personnel policy)
Risk Factor: Employee
Monitoring and Privacy
 Currently unclear if an employee has a reasonable
expectation of privacy in blogs or IMs
 Courts have split on whether there is a reasonable
expectation of privacy in content maintained on thirdparty servers (e.g., web-based e-mail accounts)
Risk Factor: Employee Monitoring and Privacy Issues
City of Ontario, CA v. Quon, No. 08-1332 (U.S.
Supreme Court), Decided June 17, 2010
• Issue: Did city police officer have an expectation of
privacy in personal text messages sent via a cityissued pager?
• Officer paid for extended service so he could send
messages while off duty
• Sued after police chief read messages in which
officer was sexting his girlfriend and wife
Risk Factor: Federal Wiretap Act
Prohibits “interception” of electronic
communications
Question of who is an “authorized user?”
Risk Factor: Federal Stored Communications Act
Prevents employers from using illicit or coercive means to access
employees’ private electronic communications
Quon v. Arch Wireless Operating Co., 554 F.3d 769
(9th Cir. 2008)
• Arch Wireless violated SCA by disclosing text
messages without consent
• Cert Denied by Supreme Court
39
Risk Factor: Legal Constraints
on Employee Discipline
• National Labor Relations Act

Protected Concerted Activity
o
Employees have a right to engage in "concerted activity“
for the purpose of collective bargaining or other mutual aid
or protection
o
Applies to both union and non-union employees
o
What is “Protected Concerted Activity?”
o 1) whether the communication is related to an ongoing
labor dispute
o (2) whether it is “so disloyal, reckless or maliciously
untrue” as to lose the Act’s protection.
Risk Factor: Legal Constraints
on Employee Discipline

National Labor Relations Act

Protected Concerted Activity

Register-Guard, 352 NLRB 1110 (2007) – that the
employer discriminatorily applied its Communication
Systems Policy (CSP) and violated Sections 8(a)(1)
and (3) of the National Labor Relations Act when it
disciplined an employee for using the company’s email system to disseminate union-related solicitations
because the employer permitted other employees to
circulate personal solicitations

LESSON: Have a No Solicitation policy, and make
sure it is applied across the board to all types of
communications.
Risk Factor: Legal Constraints
on Employee Discipline
NLRB
v.
American Medical Response of
Connecticut (AMR)
Risk Factor: Legal Constraints
on Employee Discipline
 National Labor Relations Act
 Unlawful Surveillance
o
The Board compared an employer’s monitoring
of employee social networks to eavesdropping
on employees’ discussions with their union
representative in a break room. In Magna Int’l,
Inc., 2001 NLRB LEXIS 134 (March 9,
2001)
Risk Factor: Legal Constraints
on Employee Discipline
 Expression of political opinions
 Legal off-duty activities
 Wrongful termination in violation of public policy
(arrests, convictions, bankruptcy, workers’
compensation history)
 Whistleblowing (SOX, Wage & Hour)
RISK FACTOR: Do Not Request Passwords
• Multiple states have passed laws or are actively
considering legislation limiting the rights of employers
to request or require employees to provide social
media site user ID, passwords, or data.
• CA, IL, MA, and MI all have laws barring employers
from seeking social media passwords from
applicants.
• NM and UT also just passed similar laws.
What should an employer do?
Employee Discipline v. Legal Constraints
Stop and Think, then….
o Investigation Is Key
o Decipher How Federal and State
Law Play Into the Equation
Methods to Minimize Risk
• Employers Should:
 Maintain regular oversight of your own network
 Develop a clear Electronic Communications
Policy - Get a signed acknowledgment of the
policy
 Set limits
 Clarify expectations of privacy
 Do not prohibit employees from discussing terms
and conditions of employment
Employee Policy: What To Include?
 Employees must abide by non-disclosure and
confidentiality policies and agreements
 Do not create blanket and broad social media
policies against "disrespectful comments" or
critical posts on social media.
 Employees may not make defamatory or
harassing comments when discussing the
employer, co-workers, products, services,
and/or competitors
Employee Policy: What To Include?
4 Tips For A Better Social Media Policy
Give Specific Examples
Implement a Social Media Training Program
Empower Employees to Become Brand
Ambassadors
Trust Employee Judgment
Employee Policy: What To Include?
• No expectation of privacy when using company equipment
o The Company owns the rights to all data and files in any computer, network,
or other information system used in the Company.
o The Company also reserves the right to monitor electronic mail messages
(including personal/private/instant messaging systems) and their content, as
well as any and all use by employees of the Internet and of computer
equipment used to create, view, or access e-mail and Internet content.
o The Company uses software in its electronic information systems that
allows monitoring by authorized personnel and that creates and stores
copies of any messages, files, or other information that is entered into,
received by, sent, or viewed on such systems. Accordingly, employees
should assume that whatever they do, type, enter, send, receive, and view
on Company electronic information systems is electronically stored and
subject to inspection, monitoring, evaluation, and Company use at any time.
Employee Policy: What To Include?
Only individuals officially designated may
speak on behalf of the Company
“Bloggers Beware” – Require a disclaimer:
“The views expressed in this
blog are my personal views and
opinions and do not necessarily
represent the views or opinions
of my employer.”
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Employee Policy: What To Include?
Direct: What is considered an
“Acceptable Use”
o Business use only
o Limited personal use
o Unlimited personal use
 A reporting procedure for violations of
the policy
EMPLOYERS SHOULD FOLLOW THE POLICY
FOLLOW THE POLICY
CONSISTENTLY!!!!!
Social Media and the Rules of Evidence
Is it Discoverable?
o Emotional Trauma and Harassment
Can it be Helpful?
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Willow Misty Parks
PO Box 25312
Albuquerque, NM 87125
willowmistyparks@gmail.com
Willow Misty Parks,
Owner of the Business Bookshelf, LLC
©2014 The Business Bookshelf, LLC & Willow Misty Parks
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