Government agencies are expanding their focus on employees’ rights, social media, and other employer policies and it is not just social media policies that are being invalidated. Susan and Nick discuss how recent changes in social media law might affect your company’s confidentiality policies, hiring policies and practices, and discrimination and harassment policies.

1. 25th ANNUAL EMPLOYMENT LAW SEMINAR
Do Your Company’s Policies
Need a Social Media Overhaul?
Susan Baird Motschiedler
Nicholas U. Frandsen
April 9, 2013
Salt Lake City
parsonsbehle.com

2. Introduction
 With Social Media Every Employee
– Is a broadcaster – YouTube
– Is a journalist – CNN iReport
– Is an expert – Wikipedia
– Is a network – facebook, Linkedin, Twitter
 Social Media is expanding quickly
 Employers and employees use it
2

3. Social Media
 As an employer, why should you care
about social media?
3

4. Employer/Employee Issues
 Employers use Social Media for hiring, job
site management, intra company
communications, advertisements, morale,
discipline
4

5. Expanding Work Place
 Social Media is the new water cooler
 Work place is not just brick and mortar
building
 Work place conversations don‟t just take
place from Monday through Friday from
9am to 5pm.
5

6. Liability for your company
 Employer discrimination during hiring
– Company could learn protected class information
about an employee which impacts
hiring, termination, or other adverse employment
decisions
– Example: what if you saw an employee or potential
employee‟s Facebook page and it showed the
employee scantily clad, discussed her health
problems, identified religion, announced
pregnancy, or revealed she was over 40?
6

7. Liability for your company
 Co-worker harassment
– Social Media expands the forum in which harassment
can take place
– A recent government study uncovered that 23% of
harassment victims were targeted through text
messaging, e-mail or other digital forms.
– With a digital trail of comments to follow, the
investigation of harassment claims no longer relies on
hearsay, recollection and “he said, she said”
testimony, because nothing can refute written proof.
7

8. Employer/Employee Issues
 Because Social Media adds to the ways
an employer can be liable, employers
must determine what sort of Social Media
management they want to implement
 To limit this liability, employers should
maintain meaningful yet lawful Social
Media policies
8

9. Federal Agencies getting involved
 Equal Employment Opportunity Commission
(EEOC): Responsible for enforcing federal laws that
make it illegal to discriminate against a job applicant or
employee due to race, color, religion, sex (including
pregnancy), national origin, age (40 or older), disability
or genetic information
 National Labor Relations Board (NLRB): protects
the rights of private sector employees to join
together, with or without a union, to improve their wages
and working conditions
9

10. EEOC
 No Specific regulation or advise on Social
Media yet
 August 24, 2012 training workshop: will be
increasing scrutiny of Social Media impact on
discrimination laws
 EEOC has joined the NLRB on a number of
issues and has signaled intent to screen all
discrimination complaints for NLRB violations
10

11. EEOC
 Hiring Policies
– EEOC is stepping up its scrutiny of potentially
discriminating hiring practices
– Avoid making employment decisions based in whole or in
part on membership in a protected class
(race, religion, etc.) revealed through Social Media
– If you must access social media for screening, have a
buffer (i.e. non-decision maker accesses and filters out
any info)
 Best practice: don‟t use social media in hiring
process
11

12. Hiring Policies
 New law in California: Employers prohibited from
requiring or requesting that an employee or applicant
– Disclose his or her Social Media username or password
– Access his or her personal Social Media in presence
of employer
– Divulge any personal Social Media information
 Applauded as triumph for the privacy of employees
and applicants
 Illinois and Maryland have similar laws
12

13. EEOC
 Consider previous example of the pregnant employee
who was terminated before she was clearly “showing” on
the basis pregnancy discrimination
 Employee will typically need to show that the decision
maker was aware of the pregnancy when the termination
decision was made
 If the employee can establish that she prominently
posted her pregnancy on Social Media, and that decision
maker had knowledge (for example, by being her
facebook friend), the employee will have a better chance
of getting her case before a jury
13

14. EEOC
 How does an employer protect itself in this
scenario?
– Can‟t have a blanket ban on “friending”, this likely
violates right to engage in “protected concerted
activity” (discussed later)
– Impractical, bad recruiting
 Possibly implement policy restricting supervisors
from friending subordinates
 Expect to see the EEOC ramp up enforcement
in this context in the near future
14

15. NLRB
 NLRB has been one of the most active agencies
and has issued three reports concerning Social
Media Cases:
– August 18, 2011
– January 24, 2012
– May 30, 2012
 Two primary topics
– Employer policies regarding employee use of Social Media
– Discipline and discharge of employees related to their
use of Social Media
15

16. National Labor Relations Act (NLRA)
 Protects both union and non-union
employees
 Covers “for profit” and “not for profit”
organizations
 Does not cover public-sector entities
16

17. NLRA – Section 7
 Section 7 of the National Labor Relations
Act provides:
– “Employees shall have the right to self-
organization, to form, join or assist labor
organizations to bargain collectively through
representatives of their choosing, and to
engage in other concerted activities for the
purpose of collective bargaining or other
mutual aid or protection.” (emphasis added)
17

18. NRLA – Section 7
 Has been interpreted to allow employees to:
– Discuss, comment on, complain about, and
seek to change their wages, benefits and
working conditions
– Express concerns about how they are
treated, employee discipline and discharge
issues, and other matters relating to their
terms and conditions of employment
18

19. NLRA - Section 7
 To be covered by Section of the NLRA, the
activity must be both:
– “Concerted”
– “Protected”
 The definition of Concerted and Protected
activity has been expanded in recent years
and includes activity on Social Media
19

20. Concerted Activity
 Concerted Activity:
– “engaged in, with, or on the authority of other
employees, and not solely by and on behalf of
the employee himself.” Myers Industries, 281
NLRB 882 (1986)
– Includes the activities of a single employee in
enlisting the support of fellow employees in
mutual aid and protection, as well as group
activity
20

21. Protected Activity
 Protected Activity:
– About terms and conditions of employment
and not so disloyal, malicious, or disruptive to
workplace discipline as to lose the NLRA‟s
protection
21

22. Some concerted activity
is not protected
 Concerted Activity may lose protection when
Social Media communication:
– Interferes with the employee‟s own work or that of
other employees
– Interferes with or disrupts the employer‟s operations
– Undermines workplace discipline, or
– Materially disparages the employer‟s products or
services
– (i.e. outbursts, extreme profanity or vulgarity, threats
of violence extremely defamatory, etc.)
22

23. Unlawful Employer Policies
 Work rules and policies, including those relating to
social media use, are unlawful if they “would
reasonably tend to chill employees in the exercise of
the Section 7 rights.”
 Even when a policy does not explicitly restrict
protected activities, it will violate the NLRA if:
– Employees would reasonably construe the language to
prohibit Section 7 activity
– The rule was promulgated in response to union activity
– The rule has been applied to restrict the exercise of
Section 7 rights
23

24. Unlawful Employer Policies
 Violation of the NLRA occurs even if the
employer never enforces the policy in a way
that infringes on Section 7 rights
 Unlawful policies constitute an unfair labor
practice and could subject the employer to a
cease-and-desist and notice-posting remedy
24

25. Policies that could be affected
• Courtesy/Respect/Good Conduct Policies
• Harassment Investigation Policies
• Social Media Policies
• Company Trademark and Logo Policies
• Company Loyalty/Non-disparagement Policies
• Media Contact Policies
• Confidential Information Policies
• Prohibitions on Revealing Compensation
• Complaint/Resolving Concerns Policies
25

26. Employer Policies
 Moving target, decisions still in flux
 Most current policies are overbroad despite
good intentions
 NLRB has broad interpretation of concerted
protected activity:
– Employees would reasonably construe the language
to prohibit Section 7 activity
– Employees presumed to know Section 7 rights and
vague language likely to “chill” such rights
26

27. Social Media/Handbook Policies
 Courtesy/Respect/Tone Policies
– Ex. 1: “Courtesy is the responsibility of every
employee. Everyone is expected to be
courteous, polite and friendly to our
customers, vendors, and suppliers, as well as
their fellow employees. No one should be
disrespectful or use profanity or any other
language which injures the image or reputation of
the Dealership.”
Knauz BMW and Robert Becker, 358 NLRB
No. 164 (Sept. 28, 2012)
27

28. Social Media/Handbook Policies
– NLRB: Ex. 1 is unlawful because employees
would reasonably construe it as encompassing
employees‟ protected communications, including
criticism of working conditions
• “Courteous” = aspirational = lawful
• The rest went beyond “the positive aspirational
language of the first section” to “proscribe
messages and communications potentially critical
of the company.”
Knauz BMW and Robert Becker, 358 NLRB No.
164 (Sept. 28, 2012)
28

29. Social Media/Handbook Policies
 Ex. 2: Policy requiring that social networking
communications be made in an
honest, professional and appropriate
manner, without defamatory or inflammatory
comments regarding the employer, its
subsidiaries, and their
shareholders, officers, and employees
29

30. Social Media/Handbook Policies
 NLRB General Counsel:
– Unlawful because employees would reasonably
construe broad terms, such as “professional” and
“appropriate,” to prohibit them from communicating on
social networking sites with other employees or with
third parties about protected concerns
 Solution
– Limit politeness and tone policies to aspirational
statements, do not “require”
30

31. Social Media/Handbook Policies
 Policies Addressing Harassment/Discrimination
– Ex. 1: Policy prohibited
“discriminatory, defamatory or harassing” web
entries about specific employees, work
environment, or work-related issues on social
media sites
31

32. Social Media/Handbook Policies
 NLRB General Counsel:
– The listed prohibitions, which contain broad
terms such as “defamatory” entries, apply
specifically to discussions about work-related
issues, and would arguably apply to protected
criticism of the employer‟s labor policies and
treatment of employees
– GC also does not like use of “inappropriate”
without additional context
32

33. Sample Harasment Policy
Inappropriate Conduct
 Rewritten Policy was found lawful
– Added context and reference to other policies
 “You may not use social media cites to post or talk about
coworkers, supervisors, or the employer in a manner that is
harassing, sexually harassing, or discriminatory, or that
threatens safety as it is defined in [other policy and anti-
discrimination and harassment policy]. As an example, you
should not post a comment about your coworker that is
vulgar, obscene, threatening, intimating or hostile on account
of age, race, religion, sex, ethnicity, nationality, disability or
other protected class, status or characteristic.”
33

34. Social Media/Handbook Policies
 Policies regarding Use of Intellectual Property
– Ex. 1: “Respect all copyright and other intellectual
property laws. For [Employer‟s] protection as well as
your own, it is critical that you show proper respect for
the laws governing copyright, fair use of copyrighted
material owned by others, trademarks and other
intellectual property, including [Employer‟s] own
copyrights, trademarks and brands. Get permission
before reusing others‟ content or images.
34

35. Social Media/Handbook Policies
 Policies regarding Use of Intellectual Property
– Urging respect for IP is fine
– Requiring permission for use of IP violates Section 7
because it would interfere with an employee‟s protected
right to take and post photos of employees on a picket
line, or employees working in unsafe conditions
– Employees can use your trademark/logo in connection
with Section 7 activity (i.e. post your logo on protest signs)
– Company can prohibit labeling another product with
company trademark or logo (Lanham Act)
35

36. Social Media/Handbook Policies
 Confidential Information Policies
– Ex. 1: Policy prohibiting employees from
disclosing or communicating
confidential, sensitive or non-public
information concerning the company on or
through company property to any outside the
company without prior approval of senior
management or the law department
36

37. Social Media/Handbook Policies
 NLRB General Counsel:
– Employees would reasonably understand this provision to
prohibit them from communicating with third parties about
Section 7 issues such as wages and working conditions
– The employer failed to provide any context or examples of
the types of information it deems confidential, sensitive or
non-public in order to clarify that the policy does not
prohibit Section 7 activity
– Policy further violates the NLRA because it requires prior
employer approval before engaging in protected activity
37

38. Social Media/Handbook Policies
 Unlawful Confidential Information Policies
– Ex. 2: Policy regarding “Information Security”
provided: “. . . Please note that there are
guidelines to follow if you plan to mention
[Employer] or your employment with
[Employer online] . . . *Don’t release
confidential guest, team member or
company information. . . .”
38

39. Social Media/Handbook Policies
 NLRB General Counsel:
– Employees would reasonably understand this
provision to prohibit them from discussing and
disclosing information regarding their own
conditions of employment as well as the
conditions of co-workers
– Includes compensation (wages)
information, health information, etc.
• All are fair game for employee conversation
39

40. Social Media/Handbook Policies
 Ex. 2: Policy regarding non-public information stated:
“ . . . You must . . . Not reveal non-public company
information on any public site. . . When in doubt
about whether information is [non-public], Check
with [Employer] Communications or [Employer]
Legal to see if it’s a good idea”
 Examples of non-public information included:
– Financial performance; safety performance of systems
or vehicles; secret information
– Health, performance, or compensation information
about another employee
40

41. Social Media/Handbook Policies
 NLRB General Counsel:
– Employees would reasonably understand the
provision to prohibit discussion and disclosure of
information regarding conditions of employment
– Cannot require Company permission to post
– [Disclosure of health information and
compensation information is protected, unless
employee learned the information through access
he or she has as part of formal employee duties]
41

42. Lawful Confidential
Information Policies
 Rule in social media policy provided that
employees were to confine their social
networking to matters unrelated to the
employer if necessary to ensure compliance
with securities regulations and other laws
42

43. Lawful Confidential
Information Policies
Confidential and Proprietary Information
Maintain the confidentiality of [Employer] trade secrets
and private or confidential information. Trade secrets
may include information regarding the development of
systems, processes, products, know-how and
technology. Do not post internal
reports, policies, procedures or other internal business-
related confidential communications.
43

44. Lawful Confidential
Information Policies
Confidential and Proprietary Information
Respect financial disclosure laws. It is illegal to
communicate or give a “tip” on inside information to
others so that they may buy or sell stocks or securities.
Such online conduct may also violate the Insider
Trading Policy.
44

45. Lawful Permission Policies
Representing the Company
Express only your personal opinions. Never represent yourself as a
spokesperson for [Employer]. If [Employer] is a subject of the
content you are creating, be clear and open about the fact that you
are an associate and make it clear that your views do not represent
those of [Employer], fellow
associates, members, customers, suppliers or people working on
behalf of [Employer]. If you do publish a blog or post online related
to the work you do or subjects associated with [Employer], make it
clear that you are not speaking on behalf of [Employer]. It is best to
include a disclaimer such as “The postings on this site are my own
and do not necessarily reflect the views of [Employer].”
45

46. Lawful Permission Policies
 Contact with Media
Employees should not speak to the media on
[Employer‟s] behalf without contacting the
Corporate Affairs Department. All media
inquiries should be directed to them.
46

47. Social Media/Handbook Policies
 Savings Clause
– Ex. 1:
– “This Social Media Policy is not to be interpreted or
applied so as to interfere with employee rights to self-
organize form, join, or assist labor organizations, to
bargain collectively through representatives of their
choosing, or to engage in other concerted activities
for the purpose of collective bargaining or other
mutual aid and protection, or to refrain from engaging
in such activities.”
47

48. Social Media/Handbook Policies
 NLRB General Counsel:
– Savings clause was insufficient to cure
ambiguities and remove the chill upon Section
7 rights
– “An employee could not reasonably be
expected to know that [the savings clause]
encompasses discussions the Employer
deems „inappropriate.‟”
48

49. Lawful Sample Policy
Savings Clause
 “This policy is not intended to interfere with your right
under the National Labor Relations Act to discuss
wages, working conditions, benefits, or other terms of
employment, to act in concert (i.e. together) with other
employees, or to form a union, but making comments
that are knowingly false or maliciously untrue is not
allowed. If you are having a workplace conflict with a
coworker or supervisor, COMPANY hopes that you will
use our internal grievance procedures or seek help from
Human Resources before you post it on the internet for
others to see.”
49

50. Crafting Social Media Policies
and Handbooks
 Written Social Media/Electronic Communications Policy
– Think about how policy will affect both company and
employee morale
– Explicitly address technologies (blogs, You
Tube, facebook, Google+, Pinterest)
– Update regularly – social media is quickly evolving
– Address use of company time to access social media
• Possible to prohibit?
– Address use of company resources to access social media
– Reserve the discretion to the monitor employee activity
on company resources
50

51. Crafting Social Media Policies
and Handbooks
 Written Social Media/Electronic Communications Policy
(cont.)
– Clearly identify prohibited conduct and disciplinary measures
that will follow
• Avoid broad and vague terms
• Use examples and descriptions to give context
– Include clear guidance on the following, if applicable to your
company
• Intellectual property assets (trademarks, logos, patents)
• Confidential and material non-public information
• Third-party confidentiality and privacy
• Dishonest statements regarding the company
• Name laws and regulations that apply (Federal Trade Commission,
SEC, HIPPA regulations)
51

52. Crafting Social Media Policies
and Handbooks
 Written Social Media/Electronic Communications Policy
(cont.)
– Require disclaimers from employees that they are posting in
their personal capacity and do not represent the company
• Minimizes chance that language/behavior will be imputed to
company
– Prohibit posting on behalf of the company
– Prohibit untruthful statements about the company
– Have NDA‟s, non competes, and non solicitation agreements
separate from policy and/or handbook
– Include savings clause, but do not rely solely on savings clause
52

53. Sample Policy
Expectations of Privacy
 “All contents of COMPANY‟S electronic
communications assets and systems are the
property of the company. Employees should
have no expectation of privacy whatsoever in
any data in any format or any other kind of
information or communications transmitted
to, received or printed from, or stored or
recorded on the company‟s electronic
communications assets and systems.”
53

54. Sample Policy
Monitoring
 “COMPANY reserves the right to monitor all
employee usage of the company‟s electronic
communications assets and systems and to
intercept and review any communication, in any
format, using those assets and
systems, including but not limited to social media
postings and activities. You consent to such
monitoring by your acknowledgement of this
policy and your use of such assets and
systems.”
54

55. Sample Policy
Best Practices
 “If you identify yourself as an employee of
COMPANY, include a disclaimer that your views do
not represent those of COMPANY. If you
communicate about your work or the company in
general, disclose your position at COMPANY.
Remember that anything you say can reflect on the
company, even if you include a disclaimer. Strive to
be accurate. Remember that your posts could result
in liability for yourself or COMPANY. Be respectful.
Be professional. Be honest.”
55

56. NLRB Sample Policy
The May 30, 2012 NLRB Memo in your
materials contains an entire Policy on pages
22-24 that was approved by the NLRB
56

57. Disciplinary Action Associated
with Social Media Use
 Must address things that happen on line, off the
work site, and not during work time
 Happens fast
 Numerous issues in same post
– Can have protected posts mixed in with harassing
posts from the same person
 As employer, must act fast but perform thorough
investigation and accurately characterize
posts/communications
57

58. Disciplinary Action Associated
with Social Media Use
 Factors leading NLRB to conclude that social
media posts are concerted:
– They relate to earlier discussions among employees about
the issue
– They relate to earlier discussions with management about
the issue
– They ask the assistance of other employees with the issue
or reference future efforts to discuss the issue with the
employer
– Other employees respond to the posts and support the
concerns as a group
58

59. Disciplinary Action Associated
with Social Media Use
 Disciplining or discharging an employee
pursuant to an unlawfully overbroad social
media rule violates the NLRA when the
employee violated the rule while engaging in
protected conduct
 Discharging an employee who was not engaged
in concerted conduct does not violate the
NLRA, even if the social media rule is unlawful
59

60. Unlawful Disciplinary Actions
 A non profit terminated five employees for their
conversation on Facebook that began on a Saturday
10:14 a.m. and was finished by 10:30 p.m. LC had
contacted MCR that morning, and let her know she was
going to approach a supervisor regarding LC‟s
unhappiness with MCR and others‟ job performance:
MCR: “LC, a coworker feels that we don‟t help our clients enough at
HUB I about had it! My fellow coworkers how do u feel?
DPN” What the f. . . Try doing my job I have 5 programs.
LR: What the Hell, we don‟t have a life as is, What else can
we do???
60

61. Unlawful Disciplinary Actions
YC: Tell her to come do my [f‟ing] job n c if I don‟t do
enough, this is just dum.
COJ: I think we should give our paychecks to our clients so they
can “pay” the rent, also we can take them to their Dr‟s appts, and
served as translators (oh! We do that). Also we can clean their
houses, we can go to DSS for them and we can run all their
errands and they can spend their day in their house watching
tv, and also we we can go to do their grocery shop and
organized the food in their house pantries. . . (insert sarcasm
here now).
61

62. Unlawful Disciplinary Actions
MCR: Lol. I know! I think it is difficult for someone that its not at
HUB 24-7 to really grasp and understand what we do .. I will give
her that. Clients will complain especially when they ask for
services we don‟t provide, like washer, dryers stove and
refrigerators, I‟m proud to work at HUB and you are all my family
and I see what you do and yes, some things may fall thru the
cracks, but we are all human  love ya guys.
...
LCM [person about whom the post complained]: Marianna, stop
ur lies about me. I‟ll b at HUB Tuesday . .
62

63. Unlawful Disciplinary Actions
MCR: Lies? Ok. In any case LCM, Magalie is inviting us over
to her house today after 6PM and wanted to invited you but
does not have your number I‟ll inbox you her phone number if
you wish
…
63

64. Unlawful Disciplinary Actions
 LCM complained to management
 Five of the employees were terminated on the
grounds that there posts constituted bullying and
harassment and violated the Company‟s policy
on harassment
64

65. Unlawful Disciplinary Actions
 NLRB found communication protected because it was
made in reaction to a co-worker‟s criticism of their job
performance
 Did not matter that employees had not taken concerns to
employer
 The employees had banded together and were taking
initial steps to engage in “mutual aid” and “group action”
 Communications did not fall under employer‟s
discrimination and harassment policy
Hispanics United of Buffalo, Inc. and Carlos Ortiz, 3-CA-
27872 (Dec. 14, 2012)
65

66. Lawful Disciplinary Actions
 Knauz BMW and Robert Becker, 358 NLRB No.
164 (Sept. 28, 2012)
– Becker was a salesman at the dealership
– Dealership was adjacent to a Land Rover dealership
with common ownership
– Becker was terminated after making 2 postings:
• Sales Event
• Land Rover Accident
66

67. Lawful Disciplinary Actions
 Sales Event Posting
– Dealership had a release event for new BMW
– Served cheap food: hot dogs, chips and bottled water
– Becker posted pictures of the food
– “I was happy to see that Knauz went „All Out‟ for the
most important launch of a new BMW in years.”
– Prior to posting, Becker and coworkers had
expressed concern that the food served would affect
their sales and commissions
67

68. Lawful Disciplinary Actions
 Land Rover Incident Posting
• Incident at the adjoining Land Rover dealership
• Land Rover salesman allowed a customer‟s 13-year-
old son to sit in the driver‟s seat of a Land Rover. The
child put the vehicle in gear and drove the car over
the customer‟s foot, down an embankment, and into a
pond
• Becker took and posted pictures on the accident on
Facebook, criticizing the salesman‟s choice
– “This is your car: This is your car on drugs.”
• Several coworkers left comments
68

69. Lawful Disciplinary Actions
– Posts addressing sales events were protected
– Posts addressing Land Rover not
protected, because Becker did not work at
Land Rover dealership
– Termination lawful because was not
terminated for posting about sales events
69

70. Checklist for Discipline
for Social Media
 Do not be rash
 Perform investigation before disciplining
 Articulate why a post is objectionable
– Does the post violate specific prohibitions in your social
media policy?
– Does the post constitute discrimination based on
race, sex, religion, national origin, gender, sexual
identity, etc.?
– Is the post harassing?
– Is the post threatening or intimidating?
– Is the post merely offensive?
70

71. Checklist for Discipline
for Social Media (cont.)
 Survey Prior Similar Situations
– Treat consistently
 Evaluate the post and surround circumstances
under the NLRA
– Does the post constitute protected activity?
– What preceded the post?
• Employee discussion?
– Does the post pertain to terms or conditions at work?
– Did other employees join in the discussion or
comment?
71

72. Checklist for Discipline
for Social Media (cont.)
 Is the employee a supervisor?
– Not protected under the NLRA
– Can limit supervisor more
 Does the post itself complain of unlawful
discrimination, harassment or retaliation that
your company should investigate and address?
72

73. Thank You
 Susan Baird Motschiedler
direct: (801) 536.6923
email: smotschiedler@parsonsbehle.com
 Nicholas U. Frandsen
direct: (801) 536.6627
email: nfrandsen@parsonsbehle.com
73