Social Media
and the
Workplace
Prepared for:
SHRM – York Chapter
September 2012
Presented by:
Renee C. Mattei Myers, Esq.
rmyers@eckertseamans.com
*No statements made in this seminar or in the written materials / PowerPoint should be construed as legal
advice pertaining to specific factual situations.
What Is Social Media?
“Social Media” is a general term encompassing usergenerated content that is designed to be disseminated
through means of virtual, social interaction with others.
Until relatively recently, most Internet users were
“consumers” of content. With the advent of social
media, however, web-based technologies transform
these same people into content producers.
Examples: YouTube
4,000,000,000+
views per day
60 hours of video are uploaded to YouTube every minute.
800 million unique visitors per month.
More video content is uploaded to YouTube in 1 month than all 3
major TV networks created in the past 60 years.
Examples: Twitter
140,000,000+ active users
Twitter is a social networking service that allows users to communicate with
their “followers.” It is often referred to as a “microblogging” service that is
more or less a combination of instant messaging and blogging. Twitter has
firmly established itself as a popular (not to mention extremely efficient)
tool for communicating news, market trends, questions and answers, and
links to different websites.
Messages posted to Twitter are called “tweets” and are limited to 140
characters in length. A user’s tweets are automatically pushed to his or her
followers. By default, a user’s tweets are publicly available for anyone to
see.
Examples: Google
90,000,000 active users
Google+ is the newest social networking service on the block, and is Google’s
latest attempt at cutting into Facebook’s dominance of the social networking
“marketplace.” It offers users pretty much the same things as Facebook, but
has one very noteworthy difference…
Circles allow users to group their friends/contacts into a variety of different
groups. (A person can be placed in one or more circles.) The user is then able
to select which “circles” will see the information that he or she posts to the
Google+ account.
Social Networking Media Inside
And Outside The Workplace
 American workers waste approximately two hours per day,
largely on the Internet.
 Social networking sites can be useful for business, as well as
personal purposes.
 iPhones and other portable media devices may blur the lines
between personal time and work time.
 Moreover, there are other hidden dangers associated with
employee use of the Internet and social networking sites. With
just a few keystrokes, a company may lose confidential
information and trade secrets, be liable for copyright violations,
or be exposed to hostile work environment claims.
Employer Monitoring
 The Employer’s Perspective:
 Employers want to monitor their employees for productivity.
 Employers should be on guard for “textual harassment” and
other liability that may be imposed for employee behavior
related to workplace relationships.
 Employers are concerned about potential liability for
employees’ abuse of employer-owned network and computer
systems.
 Defamation
 Unfair competition
 Negligence
 Copyright infringement
Employees’ Use of Social Media
Pros:
- Business and/or self promotion
- Up-to-the-minute information sharing with customers and
client base
- Product previews and tracking
- Job searches
- Professional connections
Employees’ Use of Social Media
Cons:
- Lack of individual privacy
- Copyright risks
- Accountability
- Negative feedback/commentary
- Customer/client privacy issues
Social Media At Work
No Consensus on Approach:
Some sources estimate that 50% of employers ban their
employees from using social networking sites while at work.
Other businesses have their own social networking sites.
Many employers use social media in the recruiting and screening
of new employees (e.g., Cisco tweeting case – “fat pay check vs.
hating work”) .
Social media can be a powerful tool for employers in defending
against employment claims – but what about the liability risks
arising from misuse of social media?
Social Media At Work
Privacy Claims
Cyberstalking
Pornography and Sexting
Disparate Treatment
Tortious Interference and Business Torts
Social Media Damage to
Company Reputation
Defamation
Cyberbullying & Text
Harassment
Misuse of Social Media: Hostile Work
Environment
Retaliation Claims
Data Security and Cyberliability
Liability for Non-Compete,
Non-Solicitation Claims
Protecting Off Duty Conduct & NLRA Rights
Negligent Hiring/ Supervision
What Can An Employer Do?
Limits on an employer’s ability to discipline and/or terminate
an employee for his or her use of social media:
- First Amendment protections (public employees)
- Fourth Amendment protections (public employees)
- Fifth Amendment protections (public employees)
- EEO concerns
- Stored Communications Act (privacy)
- “Public policy” exception to at-will employment doctrine?
(not yet…)
- Off-duty conduct statutes (not in Pennsylvania)
- National Labor Relations Act (private employees)
Employee Privacy vs.
Employer Monitoring
Federal Law:
The Electronic Communications Privacy Act of
1986 (“ECPA”):
Generally prohibits intercepting wire, oral or electronic
communications, including e-mail and Internet use.
Exceptions: consent, implied consent (employer policy),
ordinary course of business (quality review).
Text Messages
Quon vs. City of Ontario: City provided pagers
to police officers. City policy limited devices
to official use. Due to concerns over
overcharges on accounts, City audited
accounts to determine if use was personal.
Audit revealed inappropriate texts to the
officer’s wife and to a co-worker.
Quon Decision
 Issue: Was there a right to privacy in the text messages?
 U.S. Supreme Court: 1) Quon had a reasonable
expectation of privacy in the text messages, 2) the audit
of the messages was a search, 3) the search was justified
and reasonable (because it was an efficient way to
determine whether the overcharges were the result of
personal use).
 Because the search was motivated by a legitimate purpose
and was not excessive—it was reasonable.
Internet Applicant Screening
The Good:
 Demonstrates poor
judgment.
 Lacks interpersonal
skills.
 Questionable
credentials.
 Ulterior motives.
Reality Check
According to the Internet:
 Bigfoot was captured in
Georgia last August.
 Toxic waste caused
Snowball the cat to mutate
to 87 pounds.
 Bill Gates will pay me for
forwarding an email to
everyone I know to help him
test his new software.
Internet Applicant Screening
The Bad:




Protected information.
Incomplete information.
Incorrect information.
False information.
Internet Applicant Screening
 Conduct responsible research:
 Assess the timeliness of the information.
 Assess the reliability of the information.
 Use common sense:
 Use extreme caution if the information was not posted by
the potential applicant.
 Pictures can be altered or taken out of context.
Off-Duty Commentary
 Harassment of co-workers.
 Disclosure of company information.
 Breach of the duty of loyalty.
 Competitive interests.
 Bad PR.
Password Access?
 Recent push to prohibit employers from requiring
applicants to disclose email/social networking
passwords.
 Privacy issues?
 Just plain dumb?
 Violates most website terms of use.
 Maryland first state to ban practice.
 Legislator requests to have EEOC and U.S. Dept. of Justice
investigate practice.
Electronic Communications Policies
 Outright prohibition of personal use:
 Difficult, if not impossible, to enforce.
 May be illegal under the National Labor
Relations Act.
 Can lead to claims of discrimination.
 Very detrimental to employee morale.
 Even social networking sites may have a
business purpose:
 Marketing.
 Public Relations.
Electronic Communications Policies
Important provisions:




Employer owns the computer system.
No expectation of privacy.
Reserve the right to monitor.
Reasonable personal use of the network and Internetrelated systems is permitted at the discretion of the
employer.
 Harassment and other conduct policies apply at all times.
 Abuse can lead to discipline, up to and including
discharge.
Social Networking Policies
 Define whether blogging and/or social networking is
permitted during work hours.
 Provide clear guidelines about your expectations and what
types of posts are appropriate and what are not.
 Reaffirm policies on ethics and business conduct, privacy,
confidentiality and harassment.
 Remind employees to adhere to copyright, fair use and
financial disclosure laws.
 Mandate that employees clearly convey when they are
posting on their own behalf and when they are posting on
behalf of the company.
When To Look The Other
Direction
 General Rule: At-Will Employment.
 Special Exceptions:
 Some states protect “lawful off duty conduct.”
 Employees in other countries may be protected by the
laws of those nations.
 Government employers must recognize constitutionally
based privacy and free speech rights.
 The federal Stored Communications Act prohibits
“hacking” of secured sites.
When To Look The Other
Direction
The “POS” Factor:
 Employee Morale.
 Public Relations Concerns.
Enforceability:
 Can you enforce your rules?
 Can you enforce them consistently?
NLRB And Social Media
NLRA affords workers a federally
protected right to form unions and
prohibits employers from punishing
workers (union or non-union) for
discussing working conditions or
unionization.
NLRB And Social Media
In late 2010, the NLRB issues complaint
against employer for disciplining an
employee for highly derogatory
comments made about a supervisor on
Facebook page.
NLRB And Social Media
 NLRB’s position: Employer’s policy barring
employees from depicting company in “any way” in
social media was too broad because it limited the
employees’ rights to discuss working conditions
among themselves.
 Also: policy prohibiting any “disparaging” or
“discriminatory” “comments when discussing the
company or the employee’s superiors” was overbroad
and in violation of the NLRA.
NLRB And Social Media
 NLRB announces test for when “Facebook
comments lose protected concerted activity
status” (as posted on its Facebook page)
 1) place of discussion, 2) subject matter of
discussion, 3) nature of employee’s outburst, and 4)
whether outburst was in any way provoked by an
employer’s unfair labor practice.
NLRB’s Position
 NLRA protects employees who talk around the
proverbial water cooler with co-workers
(actual or virtual) since employees possess
right to discuss wages, working conditions and
unionization.
 Exchange of concerns and criticisms is
considered “concerted” or “organizational”
activity.
NLRB’s Position
 In 2012, the NLRB Office of General Counsel
issued two report on Social Media cases.
 Opinions focus on two issues: 1) the types of
social media postings by employees protected
by the NRLA, and 2) employer policies that
violate the NLRA.
Lessons From NLRB Cases
 Speech must be focused on wages, working
conditions and/or unionization (and not a
primarily private complaint) to be protected.
 If scandalous, derogatory or personal—less
protection.
 Actual conversation vs. unilateral post
expressing frustration = more likely to be
protected.
So What Do We do Now?
 Don’t issue blanket policy prohibiting all
speech in Social Media re: employer.
 Do include policy limiting Social Media use
(i.e. during work hours, false statements,
confidential information, profanity relating to
management or co-workers).
A parting thought…
Thank You!