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®
 Blogs
 Flickr®
 HootSuite®

Social Media Stats

1.15 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 emails.

Proposal to add “Internet Addiction” as a
recognized mental disorder in DSM-V.
Employer Liabilities
National Labor Relations Act
 Discrimination and Harassment Claims
 Fair Credit Reporting Act
 Fair Labor Standards Act
 GINA
 Stored Communications Act
 Privacy claims

HIRING
Discrimination claims

Evidence of what employer knew before hire
GINA

Prohibits 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.
REASONS

Legality 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 antidiscrimination 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-Duty
Social 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 Proposed
Social 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.
Reducing Liability

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.

States with Social Media Protection
Legislation
Arkansas
 California
 Colorado
 Illinois
 Maryland
 Michigan
 New Jersey

New Mexico
 Nevada
 Oregon
 Utah
 Vermont
 Washington

States Considering Laws
Florida
 Georgia
 Hawaii
 Iowa
 Kansas
 Maine
 Massachusetts
 Minnesota

Nebraska
 New Hampshire
 New York
 North Carolina
 Ohio
 Pennsylvania
 Rhode Island
 Wisconsin

QUESTIONS?
Jennifer S. Walther
Mawicke & Goisman, S.C.
1509 N. Prospect Avenue
Milwaukee, Wisconsin 53202
(414)224-0600
jwalther@dmgr.com