This presentation addresses legal issues companies must deal with when considering participating in social media. By Colin M. Leonard, Esq. of Bond, Schoeneck & King, PLLC.

1. Southern Tier Association for Human
Resources
Legal Aspects Relating to Social Media in the
Workplace
January 11, 2012
Colin M. Leonard, Esq.
Bond, Schoeneck & King, PLLC
Attorneys at Law Since 1897

2. WHAT ARE THE WORKPLACE
CONCERNS?

3. Where to begin…
• Can I search social media content as part of the
hiring process?
• Can/should I access/monitor employee social
media posts?
• Can I discipline/terminate employees for what
they say/do on social media?

4. Can I use search social media content as
part of the hiring process?
• Yes.
• However, there are some legal concerns of
which you should be aware. Namely:
– Title VII
– ADEA
– ADA
– NLRA
– FMLA
– GINA
– NYHRL

5. Use of Social Media in Hiring
• 56% of employers use social media to screen
potential job candidates*
– Up from 34% in 2008
– 20% plan to use social media in the future
• What is being searched?
Facebook – 58% Twitter – 42%
LinkedIn – 95% Other –6%
MySpace – 3%
* 2011 Society for Human Resource Management Survey

6. What Caused Employers to
NOT Hire a Candidate
Inappropriate photos/information 53%
References to drug/alcohol abuse 44%
Negative comments about previous employers/clients/ 35%
coworkers
Poor communication skills 29%
Discriminatory comments 26%
Misrepresentations about job experience 24%
Confidential information concerning previous employer 20%
* June 2009 CareerBuilder Survey

7. Can/should I access/monitor
employee social media posts?
• Yes.
• However, there are legal concerns that you
should be aware of. Namely:
– Electronic Communications Privacy Act
– New York Wiretapping Law
– Stored Communications Act

8. Electronic Communications
Privacy Laws
• Electronic Communications Privacy Act
– Prohibits intentional, unauthorized, interception and
access of wire, oral or electronic communications
(including e-mail)
• New York Penal Law Section 250
– Wiretapping Law (Class E felony)
– Prohibits monitoring, intercepting or accessing electronic
communications without consent of one of the parties

9. Consent is Key
• Consent to
– Intercept, monitor, access, disclose
– Voice mail, telephone, e-mail, Internet, computer files
• May be express and/or implied

10. Stored Communications Act
• Prohibits intentional and unauthorized access of
wire or electronic communications while in
electronic storage
• Does not apply to:
– Provider of wire or electronic communications service
– User of that service
• Employee may have privacy claim where an
employer accesses a restricted social network

11. Case Study
• Employee creates and maintains MySpace account to talk
about all the crap/drama/and gossip occurring in our
workplace, without having to worry about outside eyes
prying in
• Access by invitation only and given to select coworkers
• Managers hear of MySpace account and ask coworker with
access to provide his login information
• Managers use coworkers access information to access
forum
• After viewing the forum and its discussion of sexual and
criminal acts and fantasies pertaining to coworkers and
customers, employee was fired
(cont d)

12. Legal Concerns
• Did the managers have the right to gain access in
this manner?
– Did the coworker freely share the login information?
– Did the coworker have the authority to share his/her
access to the managers?

13. Can I discipline/terminate employees for
what they say/do on social media?
• Yes.
• However, there are some legal concerns you
should be aware of. Namely, the National Labor
Relations Act s protection of protected,
concerted activity.

14. Employee Discipline for Social
Media Conduct
• 24% of employers have disciplined an employee
for violating social media policies
– Up from 17% in 2009
• 11% of employers have dooced an employee
– Up from 9% in 2009
*2011 Proofpoint Outbound/DLP Study for E-mail Security

15. NLRA
• Section 7 provides that employees shall have the
right . . . to engage in other concerted activities for
the purpose of collective bargaining or other
mutual aid or protection . . . .
• Section 8 makes it an unfair labor practice for an
employer
– to interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed in [Section 7] . . . or
– to discharge or otherwise discriminate against an
employee because he has filed charges or given
testimony under this subchapter . . . .

16. NLRB Action – To Date
• Fielded 129 cases involving social media
• Reviewed 117 charges
• Issued 4 complaints
• In August, Office of the General Counsel issued
a 23-page report concerning NLRB social media
cases

17. When is a social media post
protected?
• When it is posted by a nonsupervisory
employee; and
• Constitutes protected, concerted activity.

18. Concerted Activity
• Activity is concerted when an employee acts with
or on the authority of other employees, and not
solely by and on behalf of the employee himself.
• Considerations:
– Did the employee appeal to co-workers for assistance?
– Did employees discuss the issue before or
contemporaneous with the online posting?
– Did employees raise the concern with management
(online or off)?
– Was there an online discussion with coworkers?

19. Protected Activity
• Protected activity includes a broad range of
conduct that relates to wages, hours, working
conditions, and other terms and conditions of
employment , or banding together for mutual aid
or protection .

20. Does protected, concerted
activity ever lose its protection?
• Yes.
• Activity may lose its protection if it is
opprobrious or disloyal, reckless, or
maliciously untrue .
• Considerations:
– where the discussion occurred (i.e., in the workplace)
– subject matter of the discussion
– nature of the outburst
– whether the outburst was provoked by a ULP by the
employer

21. Lawful or Unlawful?
• Five employees engage in a discussion on Facebook
regarding job performance and staffing level issues, after
one of the employees requested assistance in preparing for
an anticipated meeting with management about these
topics.
• Employer terminated all five employees.
→ NLRB found:
→ discussion was textbook concerted activity
→ activity was protected because it related to terms and
conditions of employment
→ swearing in posts was not sufficient to cause the post to lose
protected status
(cont d)

22. Lawful or Unlawful?
• Employee car salesman posts photographs and sarcastic
commentary on Facebook criticizing the less than luxurious
food and drink served by his employer, a luxury car
dealership, at a kickoff sales event.
• Employer terminated the salesman.
→ NLRB found:
→ termination was unlawful.
→ conduct was protected as it related to impact of cheap car dealer on
commissions
→ conduct was concerted as employee was vocalizing sentiments of co-
workers about commissions, that were previously expressed at a
meeting regarding planning for the event.

23. Guiding (Yet Fluid) Principles
• Social media posts by nonsupervisory employees
concerning a workplace concern that generate
comments by other employees will likely be protected.
• Even if no other employees respond, the post is likely to
be found protected if:
– the post is on a site designed to be seen by fellow
employees,
– there is a clear intent to initiate or further group action,
and/or
– the issues has been presented to management and/or
discussed with fellow employees.
(cont d)

24. Guiding (Yet Fluid) Principles
• Purely personal gripes or posts directed at
nonemployee relatives/friends, even about work-
related issues, may not be protected.
• Disparaging comments and profane, rude or
vulgar language may be protected.

25. What do you need to do to
address these concerns?
• Exercise extreme caution when disciplining/
terminating an employee for social media
conduct.
• Consult with counsel to insure compliance with
applicable law.

26. Supervisory Personnel
Friending Subordinates
• Benefits –
– Builds stronger connections
– Stronger team results
• Drawbacks –
– May learn information you never wanted to know

27. What do you need to do to
address these concerns?
• Educate supervisory personnel
• Recommend personal/professional dichotomy
– Personal – Facebook
– Professional - LinkedIn

28. Other Sources of Potential
Liability
• Whistleblowing
• Defamation
• FTC Rule
• FLSA/Wage & Hour
• EEO Laws
• Distracted Driving

29. FTC Rules
(Effective December 1, 2009)
• If an employee posts a blog about an employer s products
or services, the employee must disclose his or her
relationship to the manufacturer as it will likely effect the
weight or credibility of the endorsement.
– In 2009, NY Attorney General received $300,000 from a cosmetic
surgery operation where employees pretended to be satisfied
customers who experienced great results.
• Take Aways –
– if employees permitted to blog about employer s product or service,
require clear and conspicuous disclosure of relationship to
employer.
– Employees should be required to disclose that they are not
authorized to make statements on behalf of the employer, unless
they have been designated.
– No astroturfing, i.e., encouraging employees to make artificial
claims of falsely positive information.

30. FLSA/Wage & Hour Concerns
• Accessing employer s network from home or
through mobile device may be working time
• Take Aways:
– Exercise caution granting such access to nonexempt
employees
– Establish policy to address nonexempt employees
performing work outside scheduled hours

31. EEO Laws
• Anti-discrimination laws implicated where:
– adverse employment decision is based on protected
status
• access to this information could taint otherwise
defensible decision
– social networking used to harass employees
• Anti-retaliation laws implicated where employee
utilizes social media to informally protest or oppose
discriminatory practices

32. OSHA s Distracted Driving
Campaign
• OSHA has announced it will issue a citation to any
employer that requires texting while driving or who
organizes work so that texting is a practical
necessity.
• Fines could be as high as $7,000 for a serious
citation, or $70,000 for a willful citation.
ü Take Away - Inform employees through your handbook
or a separate written policy that texting while driving –
either company vehicles or personal vehicles using
company-issued phones – is strictly prohibited.

33. Social Media
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34. Save the Date for
Bond, Schoeneck & King s Workplace 2012
Annual Statewide Conference For HR Professionals
Albany Buffalo Corning Melville
June 21, 2012 May 31, 2012 May 23, 2012 June 28, 2012
New York Rochester Saratoga Springs Syracuse
June 13, 2012 May 16, 2012 May 18, 2012 June 7, 2012

35. All rights reserved. This presentation
may not be reprinted or duplicated in any
form, without the express written
authorization of
Bond, Schoeneck & King, PLLC.