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Christina Stoneburner
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Considerations for Drafting Effective and Legally Enforceable Social Media Policies
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Social media policies_powerpoint_for_labor_and_workforce_development_in_review
1.
Best Practices for
Drafting Social Media Policies February 1, 2012 Presented by Christina A. Stoneburner, Esq. Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 1
2.
Growth of Social
Networking Linkedin: More than 135 million users My Space: More than 150 million users Twitter: More than 200 million active users Facebook: More than 500 million users Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 2
3.
What Should be
Covered in Your Social Media Policy? Hiring and recruiting practices Electronic systems usages policies Harassment of co-workers Disparagement of the Company and Customers Confidentiality Agreements Who Owns the Social Media Account Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 3
4.
Use of Social
Networking Sites During Recruiting and Interviewing Perceived Benefits of Checking Applicants’ Social Networking Sites: Weed out undesirable applicants Verify employment history and/or references Obtain examples of applicant’s communication skills, creativity, etc. Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 4
5.
Risks of Checking
Applicants’ Social Networking Sites Mistaken identity Create exposure for violation of state and federal discrimination claims Eliminate defenses to such claims May be considered a background check Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 5
6.
Recommendations If Want
To Check Applicants’ Social Networking Profiles Be consistent Make job offers conditional Make a record Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 6
7.
Hazards/Liability Issues From
Employee Posts: Suits against employer and employee Trend toward finding employer liability if employee accessed/sent information using company computer, conduct was job- related, and/or occurred during working hours. Employers who block access to a particular social networking site at work may be avoiding liability in some instances. Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 7
8.
Tort claims Defamation
of the Company, other employees, customers, etc. Harassment/discrimination claims Negligence against employer Infliction of emotional distress Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 8
9.
Privacy torts Invasion
of privacy False Light Publicity Public Disclosure Of Private Facts Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 9
10.
Drafting an Effective
and Enforceable Social Media Policy: Goals Assess the benefits of social media, and incorporate it into the policy Include reasonable restrictions designed to: - prevent disclosure of confidential company information and trade secrets, - prevent legal claims against employee and employer, - reinforce the organization’s other policies/codes of conduct, - control productivity, and - protect the image of company Assess how the policy will be enforced: - Actively vs. passively Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 10
11.
Drafting an Enforceable
Policy: State Laws Anti-discrimination Statutes Workers’ Compensation Anti-Retaliation Provisions State whistleblower laws, i.e. New Jersey Conscientious Employee Protection Act. Off duty laws: NY Labor Law §201-d(1)(b) prohibits discrimination against employees based on engaging in “legal recreational” activities off work time. Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 11
12.
Drafting an Enforceable
Policy: Federal Laws on Electronic Privacy Stored Communications Act - Exception for “voluntary” disclosure Electronic Communications Privacy Act: applies to interception of information as it is being transmitted, not stored information Computer Fraud and Abuse Act - Applicable to federal computers and certain financial institutions or computer affecting interstate commerce - Makes it unlawful to access without authorization a protected computer - Patriot Act and Identity Theft Enforcement Act increased penalties for violating Act: 10 years for first offense and 20 years for second offense Only general, not specific, intent to cause damage required Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 12
13.
Drafting an Enforceable
Policy: Federal Laws Occupational Safety and Health Act Title VII, ADA, ADEA anti-retaliation provisions Sarbanes Oxley (publicly-traded employers) National Labor Relations Act Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 13
14.
Drafting a Social
Media Policy: Policy Considerations: the NLRA This is an issue for unionized and non-unionized employers. Policies often: Prohibit Employees from disparaging the company, its competitors or its employees Provide that violations can lead to disciplinary action Caution Must Be Exercised Because of: Employee’s Section 7 rights under the NLRA Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 14
15.
Drafting a Social
Media Policy: Policy Considerations: the NLRA Section 7 protects the rights of non-unionized employees to discuss working conditions Section 7 provides that employees shall have the right to: Self organize, Form, join or assist labor organizations, Bargain collectively; Engage in other concerted activities for collective bargaining or other mutual aid or protection; and Refrain from any or all of the above Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 15
16.
Recent NLRB Decisions
Where Found to Be Unlawful - Non-profit Discharges 5 Employees for Facebook postings Employee posted on Facebook that there were complaints of improper service filed by a co- worker Employee requested other co-workers to help give evidence to Executive Director that complaints were not true Employer had terminated employees for cyber- bullying other employee Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 16
17.
NLRB Decisions (cont.)
- Ambulance service’s policy violated NLRA Employee was asked to write an incident report concerning a customer complaint. Employee was denied union representative. Employee posted on Facebook that supervisor was “scumbag” and other employees joined in Challenged policy as being overbroad because it prohibited photos of employees without company permission and prohibited “rude” behavior Stressed that there was no language indicating it was not meant to affect Section 7 activity Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 17
18.
NLRB Decisions (cont.)
- Union violated Section 8(b)(1)(A) by posting interrogation video on YouTube and Facebook Union employees posed as inspectors and asked employees about illegal workers Union employees demanded information about legal status and requested to see proof Board held union had interfered with employee’s performance of non-union work Threats to call immigration were unlawful coercion Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 18
19.
NLRB Decisions (cont.)
Employers Policies Found to be Unlawful - 2 Employers’ policies which prohibited speaking badly about employer were too broad One policy prohibited “embarrassment, harassment, or defamation of the employer or would damage good will. Another policy prohibited “inappropriate” comments In both cases, focused on fact that terms could include lawful union activity Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 19
20.
NLRB Decisions (cont.)
- Supermarket chain’s policy found to be overbroad Board found provision barring employees from pressuring another employee to “friend” them ok Board took issue with policies that prohibited disclosure of “personal information” of other employees without their consent Board also took issue with policy regarding no use of logos or photographs of store because may prohibit picture of picketing activity Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 20
21.
NLRB Decisions (cont.)
Where Termination found to be Not Unlawful - Bar who terminated employee for complaining about tipping policy Employee posted comments about work to a relative complaining about tip policy and calling customers “rednecks” Even though about a term or condition of employment, not concerted activity No employee joined in on the comment and no employee discussion about the tip policy Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 21
22.
NLRB Decisions (cont.)
- Non-profit employee who made comments about mentally disabled clients not protected Employee had conversation with friends about working in mental institution Co-worker reported the incident to employer but did not participate in conversation Found not to be concerted activity because did not discuss issue with co-workers Did not address confidentiality concerns of employer in disclosing patient information Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 22
23.
NLRB Decisions (cont.)
Employer’s Policy Restricting Contact with the Media was lawful - Grocery store chain prohibited employees from responding to media inquiries and employees were required to direct all inquiries to Public Affairs office - Employees were also prohibited from taking pictures in store or parking lot without permission - Interpreted the policy on cameras to prevent news cameras not individual cameras Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 23
24.
Other Concerns:
Protection of Company Trade Secrets and Proprietary Information Consider revising confidentiality agreements and policies Address Non-compete agreements Who owns the social media account? - PhoneDog v. Kravitz Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 24
25.
Policy Drafting Checklist
Assess if employees should get permission from someone in the company before using these sites. Do not limit employees from talking about salaries or terms of conditions of employment. No expectation of privacy. Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 25
26.
Policy Drafting Checklist
Tell employees what content is prohibited Spell out consequences for violation of policy Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 26
27.
Contact Information
Christina A. Stoneburner, Esq. 973-994-7551 cstoneburner@foxrothschild.com Best Practices for Drafting Social Media Policies © 2012 Fox Rothschild LLP 27
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