Social Media in the Workplace

#ACIEPLI
ACI’s21stNationalConferenceon
EmploymentPracticesLiabilityInsurance
Moderator:
Alan B. Epstein, Esq.
Chair of Employment Law
Practice Group
Spector, Gaden & Rosen P.C.
Social Media in the Workplace
David T. Vanalek, Esq.
Claims Manager
Markel
Kirsten Hotchkiss, Esq.
Vice President
Global Employee
Relations
American Express
Global Business Travel
June 23-24, 2014
Tweeting about this conference?
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Agenda
 Introduction to Social Media
Laws & Regulations
Hiring, Firing & “Oh My”
 Employer Liability for Employee Abuse & EPLI
 Business Issues
 Litigation Issues
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ARE YOU READY?
Social Networks Are
Here!
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Most Common Examples of
Social Media
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By the Numbers….
 1.28 Billion Users on Facebook
 241 Million Users on Twitter
 500 Million Tweets per day
(5,700 TPS)
 300 Million Active Users on Google+
 296 Million Users on LinkedIn
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Social Networking Site Use
By Age Group 2005-2013
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Social Media – Global Scale
 China
 India
 Facebook
 United States
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Global Issues
 In 2010, 3 executives of Google were convicted of violating Italy’s privacy laws for allowing
the posting of a video that was humiliating to the individual (teenager with Down
Syndrome)
 In 2010, Switzerland and Germany began investigating whether Facebook is violating
privacy regulations by allowing the posting of photographs of people who do not have
Facebook accounts and have not consented to such posting
 In 2010, Arab Spring mobilized through Facebook
 In 2011, Switzerland and Australia required GoogleStreetView to blur all images of faces
and license plates before posting
 Google waged a world class battle with China over the censorship of web content by its
search engines
 China's government has resorted to using its own Internet filters — known as the Great Firewall —
to block some search results and Web sites from being seen in the mainland
 As recently as last week, Iraqi government moved to shut down the internet to prevent
social media communications.
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“On Wednesday we clean up Qatanah,
and on Thursday, god willing, we come home”
Global Issues
“Breaching Confidentiality”
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Social Networking: Impact
on Companies
Invasion of Privacy
Background Checks
Internet Usage Policies
Workplace Harassment
Discovery of personal information
Employee online conduct and company
liability
Revelation of confidential company
information
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Laws & Regulations
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Discrimination/Harassment
On March 12, 2014, the EEOC held a public meeting
to better understand concerns and issues regarding
the use of Social Media in and about the workplace
The EEOC has already determined that Facebook
postings could give rise to claims of unlawful
harassment
Debord v. Mercy Hospital, 10th Cir. 2014
 An employer that promptly investigated and addressed an employee’s FB post that her supervisor
“better keep his creepy hands to himself” was relieved of liability in a sexual harassment claim.
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Protected Conduct – Social
Media
 In October, 2010, the NLRB filed a
claim against American Medical
Response after it fired an employee
who had made disparaging remarks
about her supervisor on her FB page.
The NLRB alleged that the employee
was engaging in protected activity
and therefore the company
unlawfully retaliated against her.
 AMR agreed that it would not
implement any policy that
“improperly restricts employees
from discussing their wages, hours,
and working conditions with co-
workers and others while not at
work.”
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 Note: Protected concerted activity
can be the act of one person, so long
as it relates to terms and conditions
of employment and purports to
represent interests of others, 200
East 81st Restaurant Corp v. Arsovksi
(NLRB ALJ NY 4/29/14)

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Dawn Souza’s FB Page
• Looks like I’m getting
some time off. Love how
the company allows a 17
to be a supervisor.”
• [FYI: “17″ is the code the
company uses for a
psychiatric patient.]
• Responses:
• “Frank being a d***”
• “Yep he’s a scumbag as
usual”
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Hiring, Firing & “Oh My”
 Hiring
 Internal Investigations
 Regulating the Use
 Limiting the Use
 Discipline
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Hiring Practices
 More than 1/3 employers search Social Media during the hiring
process (different from recruiting tools)
A 2013 Carnegie Mellon Study found that candidates whose profiles
indicated they were Muslim were less likely to be called for interviews than
those who indicated they were Christian.
 There is just too much information out there. You may learn
about the person’s sexual orientation, religious beliefs, and
other protected categories.
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Social Media Missteps – How Not To Use Social Media
“I Hate My Job”
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Other Government Rules
Federal Trade Commission
Regulates advertising and
requires posts to be
forthcoming, truthful and not
misleading
Requires employees of a
company who post about the
company product to disclose
their affiliation with the
product – even on personal
pages
Regulation FD
Requires publicly traded
companies to issue
announcements of material
events to all investors at once
Although the SEC allows
companies to communicate
earnings and other
information through Social
Media, it is still subject to
scrutiny
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Key Highlights of Social Media Policy
Best Practices
Employer May:
• Require employees to disclose employer when commenting on company or competitor products (FTC)
• Request employees to participate in social media on behalf of the company
• Prohibit anonymity or pseudonymity on industry related postings (FTC)
• Prohibit discriminatory or other unlawfully biased comments (EEO)
• Prohibit threats of violence
• Prohibit disclosure of company confidential or proprietary information (Privacy, Reg FD)
• Prohibit disclosure of others’ personally identifiable information without permission (Privacy)
• Discourage use of social media to report company policy violations (but see Debord Case)
Employer May Not:
• Require civility
• Prohibit disparaging remarks
• Prohibit postings that relate to terms and conditions of employment
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Employer Liability for
Employee Abuse & EPLI
Coverage
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What Constitutes a Social
Networking Claim?
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•Improper discovery of personal
information
•Viewing of employee online
conduct and company liability
•Unlawful Invasion of Privacy
• Illegal Background Checks

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Business Issues
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 Who owns it
 Non-Competes
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Privacy and Ownership
• At least 12 states prohibit employers from requiring
employees to disclose their passwords to their social media
accounts.
• Laws typically do not apply to accounts used for business
purposes
• An exception typically exists for workplace misconduct
issues
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Non-compete/Non-solicitation
KNF&T Staffing v. Muller, (Mass. 2013)
 Employee left a recruiting job and signed a non-solicitation clause. Later, she took
another recruiting job and updated her Link’d In Profile. The employer sued her for
violating the non-solicitation clause. The court denied the claim, holding that the non-
solicit did not prohibit her from updating her profile “disclosing her current employer,
title, and contact information, and counting among her ‘Skills and Expertise’ such things
as ‘Internet Recruiting,’ ‘Temporary Staffing,’ ‘Staffing Services,’ and ‘Recruiting.’”
Two Courts in the UK have held that Link’d In contacts
belong to the employer, even if opened as an employee’s
personal account
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Non-compete/Non-solicitation
 Phonedog v. Kravitz – (CA 2011)
Twitter accounts and their passwords (as described by PhoneDog) could constitute trade secrets –
former employee required to turn information over to former employer
 Eagle v. Morgan – (PA 2013)
Owner sold company to new owners, fight ensued over Linked In account – former owner successfully
proved invasion of privacy by misappropriation of identity, tortious interference with contract,
unauthorized use of name in violation of Pa. C.S. § 8316, misappropriation of publicity, identity theft
under Pa. C.S. § 8316, conversion, civil conspiracy, and civil aiding and abetting, but couldn’t prove
actual damages
 Ardis Health v. Nankivell – (NY 2011)
Nankivell worked for Ardis Health as "Video and Social Media Producer," and had duties and
responsibilities to the company including the maintenance of certain websites, blogs, and social media
sites for the purpose of online marketing. In carrying out these responsibilities, Nankivell maintained
the passwords, login information, and email accounts associated with these sites. After she left the job,
she took this information with her. Ardis Health successfully sued for the return of all the information.
Key fact was that Nankivell had signed a Work for Hire agreement while working with the company.
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Litigation Issues
 Discovery
 Jury Instructions
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Questions or Comments?
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Social Media in the Workplace

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