Social Media
THE RIGHT WAY
February 5, 2014
JUST DO IT. BUT DO IT RIGHT
• Know It.
• Own It.
• Secure It.
WHAT IS SOCIAL MEDIA?
Blogs and micro blogs (Twitter,
Tumblr).
Social networking sites
(Facebook/Google+/LinkedIn).
Content communities
(Youtube, Flickr).
Intellectual Property & social media
• Social media account information may constitute a
protectable trade secret.
o Christou v. Beatport, LLC, 849 F. Supp. 1055 (D. Colo.
2012).
• Be aware of how social media may impact the enforcement
of your intellectual property rights.
o Jack Daniels/Whiskey Rebellion blog.
FTC Enforcement matters
• FTC Act Section 5/16 CFR §255.5.
o Companies should ensure that persons performing
social media marketing on their behalf disclose
relationship with Company.
• In the matter of Reverb Communications, Inc. (2010).
• In the matter of Legacy Learning Systems, Inc. (2011).
Free Speech CONCERNS
• The First Amendment provides some protection to government
employees in connection with their social media use.
o
Pickering v. Board of Education (U.S. S.Ct 1968) – On matters of public concern, interests
of employee /commenter are balanced against gov’t employer’s interest in promoting
efficiency of public services.
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Bland v. Roberts (4th Cir. 2013) – Hitting “like” button on Facebook may be protected
speech.
• Some state laws also provide a measure of free speech protection for
employees that would apply to social media use (e.g., Conn. & Cal.).
o
Conn. bars employers from disciplining an employee for exercising “First Amendment”
rights, as long such exercise “does not substantially interfere with job performance or
working relationship with employer”. Conn. Gen. Stat. §31-51q.
o
Cal. prohibits employer from (a) forbidding employees from engaging in political activity or
(b) using coercion to influence political activity. Cal. Labor Code §§1101 – 1102.
Federal Law: THE SCA & THE
CFAA
• Ehling v. Monmouth-Ocean Hospital Service Corp.
(U.S.D.Ct.N.J. 2013) – The Stored Communications Act (the
“SCA”) protects employee’s private Facebook wall posts.
• The Computer Fraud & Abuse Act (the “CFAA”) prohibits
accessing protected computers without authorization. 18
U.S.C. §1030.
• Eagle v. Morgan (E.D. Penn. 2012) – Former employee failed to
establish damages under the CFAA for unauthorized access of
her LinkedIn account by former employer.
Social media in hiring - risks
• May reject (or hire) based on incorrect information.
• Applicant can assert that employer considered
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improper information (e.g., protected class status).
Some U.S. states prohibit employers from
discriminating against employees/applicants for lawful
use of lawful products during nonworking hours (NC,
NY, Colorado, others).
May run afoul of legislation prohibiting request for
social media passwords.
State Password protection statutes
Ark, Cal, Colo, Ill, Maryland, Mich, Nevada, NJ, NM, Oregon,
Utah, Vermont, Washington
• Prohibit requiring or requesting employee/applicant to
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disclose username or password to access personal
social media.
Also prohibit requiring employee/applicant from
accessing in employer’s presence or divulging contents
of personal social media.
Many (but not Illinois) have exceptions for
investigations protecting confidential and proprietary
company information.
Critical that company does not allow employees to use
personal email for work.
Practical advice: using social media in hiring
• Think twice before doing it.
• Think twice before requesting a password, and then
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check with your attorney.
Include release/authorization in applications (if permitted
by law).
Check terms and conditions of website being accessed.
No Pretext (do not falsify, impersonate, retrieve
keystrokes to get access).
Focus on job-relatedness of information.
Only give decision maker relevant information.
Retain information used for hire/no-hire decision.
Be consistent (don’t discriminate).
Social media DURING EMPLOYMENT: own
it
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Own the Company’s social media.
Don’t permit employees to use personal social
media for business.
Don’t leave all responsibility all to one person
(HMV).
Know what is on your social media.
Don’t forget about it. Periodically check on it.
Save it.
Have a social media policy!
Key strategy: the social media policy
• Every Company should have one.
• Include appropriate limits(nondisclosure, harassment,
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employee endorsements, etc.).
Make clear who owns what.
Prohibit use of company name in personal twitter
handles, blog names, etc.
Disclose company’s right to inspect (to the extent
permitted by law) to ensure compliance.
Inform employees of monitoring and no expectation of
privacy if company resources are used.
Have employee sign acknowledgment and consent.
Beware the NLRB.
NLRB: Unlawful Policies
• “Don’t release confidential guest, team
member, or company information” on social
media sites.”
• “Make sure that any photos, music, video, or
other content you are sharing is legally
sharable or that you have the owners
permission.”
• “Offensive,
demeaning,
abusive
or
inappropriate remarks are as out of place
online as they are offline, even if they are
unintentional.”
NLRB: Unlawful Policies
• “The Corporate Communications Department is
responsible for any disclosure of information to the
media regarding [Employer] and its activities. Unless
you receive prior authorization from the Corporate
Communications Department to correspond with
members of the media or press regarding [Employer]
or its business activities, you must direct inquiries to
the Corporate Communications Department.”
Posts that Harass Co-Workers
Hispanics United of Buffalo, Inc., Case No. 3-CA-27872
(N.L.R.B. Sept. 2, 2011). Facebook post:
• Discussions about another employee’s criticisms of the
employees’ work performance were still protected.
• Termination and policy violated NLRA.
Can Employees Go Too Far?
• “Bob is such a NASTY MOTHER F****R don’t know how
to talk to people!!!!! F**k his mother and his entire f****g
family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!”
• Protected as activity by two or more employees for mutual
aid or protection regarding terms or conditions of
employment and was not egregious enough to cause the
employee to lose the NLRA’s protections.
Can Employees Go Too Far?
• “…let them figure it out and they start loosin’ kids I ain’t help’n HAHA.”
• “…we’ll take advantage, play music loud … teach kids how to graffiti up
the walls…. I don’t feel like being their b***h and making it all happyfriendly middle school campy. Let’s do some cool s**t, and let them
figure out the money. No more Sean. Let’s f**k it up.”
• “HAHA we gone have hella clubs and take the kids.”
• “[H]ahaha! F**k em. Field trips all the time to wherever the f**k we want!”
• Although concerted in voicing disagreement with management, NOT
protected under the NLRA. “[T]he question is whether the conduct is so
egregious as to take it outside the protection of the Act, or of such
character as to render the employee unfit for further service.”
QUESTIONS?
Thank You!
Todd C. Taylor
(704) 331-1112
toddtaylor@mvalaw.com
Karin M. McGinnis
(704) 331-1078
karinmcginnis@mvalaw.com
Benjamin P. Fryer
(704) 331-1163
benfryer@mvalaw.com