Social Media –
Why Should You Care?
Stateline SHRM
September 8, 2011
Carlos S. Arévalo
Zukowski, Rogers, Flood & McArdle
50 Virginia St.
Crystal Lake, IL 60014
815/459-2050
carevalo@zrfmlaw.com
www.zrfmlaw.com
What is “Social Media”?
Forms of electronic communication (as Web
sites for social networking and microblogging)
through which users create online communities
to share information, ideas, personal messages,
and other content (as videos).
Merriam-Webster 2011
Types of Social Media
Facebook
 Twitter
 LinkedIn
 Blogging

Facebook

More than 750 million active users

50% of users log on to Facebook in any given day

Average user has 130 friends

People spend over 700 billion minutes per month on
Facebook
Facebook (cont.)

There are more than 250 million active users
currently accessing Facebook through their mobile
devices.

People that use Facebook on their mobile devices
are twice as active on Facebook than non-mobile
users.

There are more than 200 mobile operators in 60
countries working to deploy and promote Facebook
mobile products.
Twitter

Number of new accounts created on March 12,
2011: 572,000.

Average number of new accounts per day over the
last month: 460,000.

Increase in number of mobile users over the past
year: 182%.
Twitter (cont.)
 The
average number of Tweets people sent per day,
one year ago: 50 million.
 The
average number of Tweets people sent per day, in
the last month: 140 million.
 Tweets
 Tweets
sent on March 11, 2011: 177 million.
per second (TPS) when Michael Jackson died
on June 25, 2009 (a record at that time): 456.
LinkedIn

As of August 4, 2011, LinkedIn operates the world’s
largest professional network on the Internet with
more than 120 million members in over 200 countries
and territories.

More than half of LinkedIn members are currently
located outside of the United States.

There were nearly two billion people searches on
LinkedIn in 2010.
LinkedIn (cont.)

As of June 30, 2011 (the end of the second quarter),
LinkedIn counts executives from all 2011 Fortune 500
companies as members; its corporate hiring tools are
reportedly used by 75 of the Fortune 100 companies.

More than 2 million companies have LinkedIn
Company Pages.

LinkedIn is currently available in nine languages:
English, French, German, Italian, Portuguese,
Spanish, Russian, Turkish and Romanian.
Blogging

There have been more than 133,000,000 blogs indexed
by Technorati since 2002.
 According to Universal McCann (now UM) 77% of
Internet users read blogs.
 The popularity of blogging is split evenly among both
men and women with 50.9% of bloggers being female
and 49.1% being male.
 The United States has the largest share of bloggers
with 29.22% of all bloggers.
Blogging (cont.)

Hobbyists (non-income bloggers) seem to be
blogging less and part-timers, professionals, and
self-employed bloggers are blogging more than ever.

15% of Bloggers spend 10 or more hours each week
blogging.

One in five Bloggers report updating on a daily basis.

The most common rate of updating is 2-3 times per
week.
Social Media
So should we care?
Social Media (cont.)
Yes…
The Good...





If used properly, it is an excellent marketing tool.
It enhances access to potential customers, target
audience.
It allows for optimal communication between
employees, customers and public.
It fosters stronger relationships.
It allows users to engage and remain competitive in
today’s “global market”.
The Bad…
You can be sued…
The Bad…for Employers
If not handled properly, there may be problems related to:

Recruitment

Employee misconduct using social media

Free Speech

Access to Employee’s Use of Social Media

Employee Discipline Based on Use of Social Media
Recruitment

Pre-screening of employees by conducting
internet search.
 Limiting recruitment efforts to internet.
 Failure to notify candidate of social
media/internet search.
 Failure to verify information obtained in
internet/social media.
 Decision making on social media information
related to religious affiliation, age, ethnic, racial
and sexual orientation (Illinois).
Employee Misconduct





Potential for harassment using social
media.
Specific individuals can be targeted.
It can be general in nature, intensifying
conduct that creates a “hostile work
environment”.
Cyber-bullying using social media.
On duty/off duty is irrelevant.
Free Speech



Typically, a concern for public sector employers.
Claims hinge on whether speech on matters of
public concern are outside the scope of
employment.
Spanierman v. Hughes, a Connecticut case
involving a non-tenured teacher fired for posting
an Iraq war related poem. School prevailed
because there were multiple inappropriate
comments, pictures and communications
between the teacher and students.
Access to Employee’s Social Media

Primary consideration is the
employee’s expectation of privacy.
 Expectation of privacy depends on
who owns or pays for the equipment
used, the nature of the communication
and how it relates to the employee’s
job.
 Does employer have a Social Media
Policy in place?
City of Ontario v. Quon





Supreme Court case decided in June 2010.
City issued pagers to police officers with usage
limits, which Sgt. Quon and other officers
exceeded.
Police Chief investigated whether limits were too
low and to determine costs.
Sgt. Quon’s usage consisted of non-work related
messages of a sexually explicit nature.
Sgt. Quon was disciplined following an internal
affairs investigation.
City of Ontario v. Quon (cont.)



City had written computer, internet and email usage policy
specifying that City “reserves the right to monitor and log
all network activity…with or without notice” and that users
“should have no expectation of privacy when using these
resources”.
Sgt. Quon claimed the City had violated his 4th Amendment
rights of protection against unreasonable search and
seizure.
Supreme Court eventually heard the case and applied a two
step analysis: 1) Does the employee have a reasonable
expectation of privacy; and 2) Was the search reasonable
under all circumstances.
City of Ontario v. Quon (cont.)

The Court found that search was motivated by a
legitimate work-related purpose and was not
excessive, and as a result, it was reasonable.

However, the Court hesitated to find any
reasonable expectation of privacy for Sgt. Quon
noting that, given the dynamic and emerging
technology of communication and information
transmission, there may be far too many
implications for future cases that cannot be
predicted.
City of Ontario v. Quon (cont.)

Impact of City of Ontario?

It is not a general rule, each case will be decided on a
case-by-case basis.

Ontario is a public sector case.

It underscore importance of work policies and
notification to employees to ensure “there is no
expectation of privacy”.
Employee Discipline

Utilize concept of “just cause”
– There must be a reasonable rule in place
– There must be notice to employees of possible
consequences
– There must be an investigation
– Investigation must be fair
– There has to be proof
– Disciplinary action must be equally and consistently
applied
– Disciplinary action must be appropriate
Social Media Policy




Adopt a social media policy or revise existing
computer usage policies to include social media.
Policy sufficiently broad to address off-duty and
personal use.
Notification to employees of policy and no
expectation of privacy.
Notification to employees of company monitoring
employee social media practices.
Social Media Policy (cont.)

Define scope of policy and what is prohibited:
–
–
–
–
–
–

Company confidentiality
Use of disclaimers
Use of company property
Social media usage during work hours
Social media practices off duty
Rules of conduct apply to social media usage
Identify consequences of violation of social
media policy, including termination.
QUESTIONS?
THANK YOU