Where Do We Go From
Here? – Social Media
Guidance for Employers
ISC SHRM Conference
August 22, 2011
Lisa R. Callaway, JD, SPHR
The Management Association of Illinois
© 2011 The Management Association of Illinois
Overview
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Business concerns
Legal issues
Privacy/monitoring issues
Protected concerted activity
Policy recommendations
© 2011 The Management Association of Illinois
© 2006 The Management Association of Illinois
Business Concerns
Why are employers so worried?
• Negative publicity
• Loss of control
• Productivity
• Paranoia?
© 2011 The Management Association of Illinois
Legal Issues
Why are employers so worried?
• Trademark and copyright
infringement
• Protecting trade secrets
• Harassment claims
• Defamation issues
© 2011 The Management Association of Illinois
Legal Issues
Why are employers so worried?
• Illegal activity
• First Amendment issues (public
sector employers)
© © 2011 The Management Association of Illinois
e
What employees do when
we’re not watching…
http://youtu.be/CvVp7b5gzqU
A Comcast technician came to
replace a faulty modem. After
spending an hour on hold with
Comcast's central office, he fell
asleep on my couch.
© 2011 The Management Association of Illinois
Privacy and Monitoring
Competing Interests
Employer’s need/right to monitor the
workplace and employee activity
while on the job
vs
Employees’ expectations of privacy
© 2011 The Management Association of Illinois
Privacy and Monitoring
• The conflict between work and
private life
– Culprits –
 Demise of lifetime jobs
 Increase in females in the workplace
 24/7 technology
© 2011 The Management Association of Illinois
Privacy and Monitoring
• Crucial Questions
1. Does the employee have a
reasonable expectation of
privacy?
2. Is the employee engaged in
protected concerted activity?
© 2011 The Management Association of Illinois
Electronic Monitoring
• Electronic Communications
Protection Act (ECPA)
– Title I (the Wiretap Act) – prohibits
employer from intercepting wire, oral or
electronic communication
 Exceptions:
1. One party consents
2. If conducted in the ordinary course of
business; if employer intercepts and
finds call is private, employer must
end surveillance
© 2011 The Management Association of Illinois
Electronic Monitoring
• Electronic Communications
Protection Act (ECPA)
- Title II (the Stored Communications Act)
– prohibits employer from accessing
communications stored by
communication services
 Exceptions:
1. Employer provides the communication
service
2. User of service authorizes the access
© 2011 The Management Association of Illinois
Electronic Monitoring Illinois
• Illinois Eavesdropping Statute
– Electronic communication = any transfer of
writing, images, sounds transmitted where the
sending and receiving parties intend the
communication to be private and the
interception is accomplished secretly
 Exceptions:
1. unless interpreter does so with the
consent of all parties to the communication
2. conducted by business entity engaged in
marketing or opinion research or in phone
solicitation
© 2011 The Management Association of Illinois
What employees do when
we’re not watching…
http://youtu.be/-X0jjdzWXGA
My Boss is Evil
© 2011 The Management Association of Illinois
Monitoring –
Case Study 1
• Employee sends sexually-explicit
text messages
• Employer-issued pager
• Employer discovers messages when
device is searched
• Employee disciplined
 Was the employer’s search legal?
© 2011 The Management Association of Illinois
Protected Concerted
Activity
• Employees have the right to engage in
concerted activities for the purpose of mutual
aid or protection
 Section 7 of the National Labor Relations Act
• What does this have to do with social media?
 Quite a lot!
•
We don’t have a union.
 So what!
© 2011 The Management Association of Illinois
PCA – The Current View
• “In 2007, one cannot reasonably contend …
that an e-mail system is a piece of
communications equipment to be treated
just as the law treats bulletin boards,
telephones, and pieces of scrap paper.”
 NLRB Board Member Wilma Liebman
(now chair)
• “Overly broad rules” improperly restrict
employees from discussing wages, hours
and working conditions.”
 2011 NLRB
© 2011 The Management Association of Illinois
Protected Concerted Activity –
Case Study 2
• Employee, working for ambulance company, was
asked to complete an incident report re: a situation
that led to customer complaint
• Employee asked for union rep; company denied
• In off hours, employee posted on Facebook that
supervisor was a “scumbag” and a “psychiatric
patient.”
• Other employees commented on employee’s post
• Employee was terminated 3 weeks later
 Did the employee’s Facebook comments
constitute protected concerted activity?
© 2011 The Management Association of Illinois
Protected Concerted Activity –
Case Study 3
• Reporter posts tweets on Twitter
account
– “The Arizona Daily Star’s copy editors are the
most witty and creative people in the world. Or
at least they think they are.”
– “What?!?!? No overnight homicide? WTF?
You’re slacking Tucson.”
– “Suggestion for new Tucson-area theme song:
Droening (sic) pool’s ‘let the bodies hit the
floor.’”
© 2011 The Management Association of Illinois
Protected Concerted Activity –
Case Study 3
-
In response to a misspelling in a tweet by a
Tucson-area television news station: “Um, I
believe that’s PEDAL. Stupid TV people.”
• Account operated and controlled by
employee
• Account identified employee as reporter for
local paper
• Employee fired
 Did the employee’s tweets constitute
protected concerted activity?
© 2011 The Management Association of Illinois
Protected Concerted Activity –
Case Study 4
• Car salesman and coworkers were
unhappy with quality of food/beverages at a
dealership promotional event
• Salesmen complained that sales
commissions would suffer as a result
• After event, salesman posted photos and
commentary on personal Facebook page
critical of event
• Other employees had access to page
© 2011 The Management Association of Illinois
Protected Concerted Activity –
Case Study 4
• Following week, employer asked employee
to remove posts – he complied
• Employee fired
 Did the employee’s Facebook
comments constitute protected
concerted activity?
© 2011 The Management Association of Illinois
Policy Recommendations
• Have a policy
– Clear guidelines
– Advise employees they have “no
expectation of privacy or confidentiality
when using” employer-issued
technology (Quon)
– Do not attempt to overreach in policy –
use legally-acceptable jargon (AMR)
• Widely distribute (and frequently review)
policy
© 2011 The Management Association of Illinois
Policy Recommendations
• Employer-conducted searches should have
legitimate business justification (and limit to
work-related issues)
• Train supervisors (on policy and
acceptable conduct)
• Supervisors must understand the law of
protected concerted activity
(notwithstanding union status)
• Ensure discipline is even-handed
• Employment at will has limited application
© 2011 The Management Association of Illinois
Advice to Supervisors
• Use discretion in making/responding to
“friend” requests
• Understand organization’s policies
• Behave! Employees mimic what they see.
© 2011 The Management Association of Illinois
Advice to Employees
• Be familiar with organization’s policies on
e-mail, Internet and business systems and
social media usage
• Limit access to personal e-mail accounts
during working time and when using
employer’s equipment
• Remember you have a work life when
posting on social media sites
© 2011 The Management Association of Illinois
Questions?
The Management Association of Illinois
1400 Opus Place, Suite 500
Downers Grove, IL 60515
800.448.4584
www.hrsource.org
© 2011 The Management Association of Illinois