© 2014 Jackson Lewis P.C.
Presented by:
Lynn C. Outwater, Esq.
Sheri L. Giger, Esq.
(412) 232-0404
www.jacksonlewis.com
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Instantaneous communication
Comments made on social media are more
permanent than a comment made at a party
Comments can be re-broadcast and spread,
creating widespread embarrassment
Easier to misconstrue a Twitter post or Facebook
comment
Easier to post videos, photos, etc.
Blurs the line between inside and outside of the
workplace
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Negligent hiring/supervision.
Legal constraints on employee discipline.
Discrimination/harassment/retaliation.
Reputational harm to employees.
Reputational harm to employers.
Privacy pitfalls.
Personal Information, trade secrets or
proprietary information.
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Facebook
o 1.11 billion active users
o 665 million daily active users
Instagram®
o 90 million monthly active users
o 40 million photos uploaded per day
o 8,500 likes per second
Twitter
o 554 million active users
o 9,100 tweets per second
The Average American
Spends over 3 hours
per day on SNS!
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Can Employers Base Disciplinary Action
or Termination Decisions on a SNS page
or post?
o Typically, yes, if it does not violate
discrimination or other employment laws.
o BUT, employers should do so cautiously.
Many questions to ask, for example:
• How was the information obtained? (public
post v. private post)
• Was the SNS search performed consistently?
• Is the source reputable?
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Some states have laws that prohibit employers from
considering off-duty conduct when making adverse
employment decisions
o About nine states, including California, New York, Colorado, and
North Dakota, have statutes known as “lifestyle discrimination”
laws, which ban discrimination based on legal off-duty
recreational behavior
An employer could arguably violate these laws by
terminating an employee after discovering from social
media that, for example, the employee was drinking the
night before
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Expression of political opinions (e.g., New Jersey)
Wrongful termination in violation of public policy
(arrests, convictions, bankruptcy, workers’
compensation history)
Whistleblowing
Potential discrimination/harassment/retaliation
claims
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Kurtts v. Chiropractic Strategies Group, Inc., 1111546, 2012 Lexis 11064 (11th Cir., June 1, 2012).
o Employer can be held liable for sexual harassment by its
supervisor who was sending lewd text messages
Yancy v. U.S. Airways, Inc., No. 11-30799, 2012
Lexis 6729, WL 1109341 (5th Cir. Apr. 4, 2012).
o Mean-spirited Facebook posting by supervisor served as
the basis for employee’s EEOC complaint
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National Labor Relations Act- Section 7: protected
concerted activity; applies to both union and non-union
employees
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NLRB found that Facebook post soliciting assistance
from co-workers on the issue of job performance in order
to prepare for a meeting with the boss was concerted
activity.
Next, the NLRB found the Facebook posts were
protected because they went to terms and conditions of
employment.
Finally, even though there was swearing or sarcasm in
some of the posts, the employee was still protected!
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NLRB finds NO violation of NLRA when employer fired
employees based on social network posts that were
irrelevant to their working conditions.
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NLRB issued first social media policy decision on Sept.
7, 2012
Finding: Costco policy—which prohibited Costco
employees from making statements on social media that
could damage the company or other employees’
reputations—could chill employees’ rights regarding
protected concerted activity under the NLRA.
Finding consistent with NLRB’s three reports on social
media issues.
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Protecting confidential information and prohibiting the
use of company logos, graphics, or videos of the
employer’s facilities
o Giant Foods- July 11, 2013 Advice Memorandum
• The term “confidential information,” without limiting language, can
reasonably be interpreted to include information concerning terms
and conditions of employment.
• Use of the company’s logo and trademarks while engaging in
Section 7 activity would not infringe on any proprietary interest.
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Prohibiting employees from using any social media
Prohibiting any communication or post that constitutes
embarrassment, harassment or defamation of the
employer or its officers, directors and employees
o Quicken Loans—June 25, 2013 Decision
Prohibiting statements that lack truth or might damage
the reputation or good will of the employer, its officers,
directors, and employees
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In the same report, the Board found certain activities
involving Facebook or Twitter posts were not protected:
o Newspaper employee terminated following a tweet about news
headlines including homicides, several tweets with sexual
content and tweets criticizing an area television station BUT the
tweets were not shared with co-workers. NLRB found this was
not concerted activity.
o Employee terminated based on a Facebook conversation with a
relative complaining about not getting a raise and working
without tips. He did not discuss the posting with his co-workers
and none of them responded, so not concerted activity.
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Does Posting:
o Seek to initiate, induce or prepare group action?
o Reference conversations with co-workers that occurred before
postings were made so that the posting is a logical outgrowth of
those conversations?
o Seek to bring group complaints to the attention of management?
o Did any co-worker respond to the online post?
o If so, what was the nature of that response?
o Reference, involve or concern wages, hours, benefits, working
conditions or other terms and conditions of employment?
o So outrageous, disloyal or disparaging of the Company’s product
or service so as to lose the protection of the Act?
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Attract Employees
Source of Candidates
Engage Candidate
Screen Applicants
“Close the Deal”
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Education History
Vacation Photos
Work History
Party Photos
Career Interests
Family Information
Hobbies
Links to Profiles of Friends
Memberships
Links to Blogs
Favorite Movies
Political Views
Drug Use
Poor Judgment
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Yes, so long as the employer does not violate state or
federal discrimination laws, or other state statutes which
prohibit the use of certain kinds of information.
There is no prohibition against using information that an
applicant places in the public domain. However, use of
protected demographic information such as race,
gender, national origin, age and pregnancy, among
others, is prohibited in hiring decisions.
Risks?
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Hiring Issues Associated with Using the Web
o Viewing applicant’s personal information on SNS may trigger
anti-discrimination laws
• Access to information regarding protected status?
– Age, disability/medical information, race, sex, religious beliefs,
pregnancy, sexual orientation, military status, marital status or other
protected characteristic (GINA)
o Learning about applicant’s workers’ compensation claims history
o Learn about criminal or arrest histories
o Invasion of privacy
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Problem:
o A search may identify an applicant’s protected characteristics
such as age, race, gender, national origin, ancestry, sexual
orientation, marital status, arrests or other factors that should not
be considered in a hiring decision
Solution
o Have a non-decision maker conduct the search and filter out
protected information
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Problem:
o Most of the good information about applicants on the internet
requires you to get past security tools
Solution:
o Do a better job interviewing. Do not use false identities or
require applicant to provide you with passwords.
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Establish Guidelines for Online/SNS Search of
Applicants
o Before you do a Search:
• Determine how relevant the information is to the job
o If you are going to do these searches:
• ID appropriate searcher
• Train searcher
• Do them consistently
• Document them
• Consider using third-party service
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Facebook, LinkedIn, and Twitter allows users to post
recommendations from their employers
o Employee expects detailed favorable recommendation
o Favorable on-line reference may conflict with employee
performance evaluations
o Negative online recommendation may be the basis for
defamation claim
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Facebook vows to end employers’ practice of asking for
passwords from applicants (as well as for current
employees)
Legal Protections:
o Arkansas, California, Colorado, Delaware, Illinois, Maryland,
Michigan, New Jersey, New Mexico, Nevada, Oregon (1/1/14)
Utah, and Washington
o The Social Networking Online Protection Act (February 2013)
• Introduced in the House
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Consider employee’s efforts to keep social networking
activity private
Do not circumvent privacy tools or use a false identity to
access website
Supervisors should not “friend” subordinates; teachers
should not “friend” student
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Eagle v. Morgan, No. 11-4303, (E.D. Pa. March 12,
2013)
o Held employer liable for invasion of privacy, unauthorized
use of name and misappropriation of publicity for retaining
access to former employee’s LinkedIn account after her
termination, blocking the former employee’s access to the
account and replacing some information with that of its
newly appointed CEO.
o However, the former employee was not entitled to
damages because she could not point to a specific
business deal she lost out on because of her lack of
access to her LinkedIn contacts.
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Develop social media policy which address items like:
o Expectations of privacy
o Use of SNS while at work
o Whether HR/Hiring Managers can access social networking sites
for job applicants/employees
o Training for HR/IT personnel responsible for monitoring/using
electronic information
o Prohibiting access to private password protected social
networking sites without proper authorization.
o Prohibiting third party to “friend” applicant/employee to gain
access to site
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Consider restriction on professional references via
LinkedIn
Investigate complaints of discrimination/harassment
stemming from posts on social networking/blogs
Ensure security of employer sponsored blogs
Provide guidelines on appropriate terms of use of
employer sponsored sites/blogs
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Written policy
Identify what equipment is covered
o Company computer system (both hardware and
software), PCs, laptops, cell phones, PDAs, etc.
Cover both current and future technology
Cover personal electronic devices that use the
company services/system to operate
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Personal use vs. Business use
o Reality – personal use occurs
o Would prohibiting the use be counterproductive?
Consider your corporate culture and other business factors
Consider the NLRB Model Social Media Policy issued on May 4, 2012
Once you decide, ensure that employees know what, if any, personal
use is permitted
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The “BYOD” Movement
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“Bring Your Own Device”
Rapid increase in the use of mobile devices
by employees
o iPhones®, iPads®, Android® decives, etc.
Employees are using their personal mobile
devices and electronic systems to perform
work for the Company
o How is your company handling this?
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Mobility
Work/Life Balance
Personalization/Familiarity
Cost Savings
Improves Employee
Productivity and Availability
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Compliance Issues
o Security
Who is affected by the risks associated
with BYOD within the company?
o Legal Dept.
• E-Discovery
• Accessing the device
• Wage and hour issues
• International law concerns
• Employee conduct issues
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HR Department
o Handbooks
o E-Communications/Social Media
Finance Department
IT Department
o Obligations to protect, safeguard, encrypt data
Employees
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How do you protect the company in these
situations?
Have a policy in place in advance which
addresses these risks head-on
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Steps to Protect Trade Secrets and Confidential
Information
o Policies. Employers must consider trade secret protection in
their BYOD policies and BYOD implications in their
confidentiality/non-disclosure agreements
o Limitations on BYOD. Certain types of employees may not be
appropriate to participate in BYOD
• Research Scientists
• Executives
• Sales
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Eligibility and Program Parameters
Reimbursement
Security—protecting data
Monitoring
o Expectation of Privacy Issues
End-user support
Policy violations
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