BEYOND THE WATER COOLER

The Impact of “Socializing” and Managing Social Media in the Workplace

Silvia King, FGP International

Mark Bakker, Wyche P.A.

August 26, 2014

COMMUNICATION & INFORMATION DISSEMINATION REVOLUTION

BACKGROUND FOR HR

SHRM 2012 SURVEY RESULTS: SOCIAL MEDIA IN BUSINESS STRATEGY AND OPERATIONS

40% of companies who responded had a SM policy

www.shrm.org/research | twitter@SHRM_Research

Of those companies with a policy, 33% indicated taking disciplinary action for violation of the policy

Overall, the majority of companies reported that HR is responsible for creating and enforcing these policies

www.shrm.org/research | twitter@SHRM_Research

Majority of companies use SM for internal communication and information sharing

55% of companies planned to increase their SM usage over the next 12 months

Statistics

Source: Statisticbrain.com

“72% of all internet users are now

active on social media”

How can you restrict social media at work so that productivity is not impacted and so that the employer has some control?

How do you address personal devices at work?

How can you protect valuable contacts through social media from being taken by your employees when they leave?

When is it acceptable to fire for inappropriate pictures or comments that don’t align with company values?

What do you do if you find out that your employees have a secret blog specifically created for complaining?

What are the legal implications of using social media in hiring decisions?

Basic Questions Mark Bakker?

PRE-EMPLOYMENT CONCERNS

SURVEY: GOGULF.COM

Job Applicant tweeted the following:

Applicant was not hired…

SOCIAL MEDIA – HIRING BEST PRACTICES

SM after interview

Tool in toolkit

Don’t pass on questionable info to decision maker

Establish policy and guidelines

Conduct training on hiring best practices

SHRM “Use Social Media Smartly When Hiring” Steve Bates 3/19/13

SOCIAL MEDIA – HIRING (LEGAL IMPLICATIONS)

• Risks False identity/inaccurate info

Impermissible subject matter

• Limit Risks Third party vendors

Separate cyber-vetters from decision makers

SOCIAL MEDIA – ACCESS TO PASSWORDS

• Accessing passwords – with permission

• Banned in 12 states

• Not recommended

Fair Game: unsecured, publicly

available social media

• Accessing passwords – no authorization

• Trapp v. DHS

• resorting to self-help could expose an

employer to civil and possible criminal

liability

MANAGING SOCIAL MEDIA IN THE WORKPLACE

CASE STUDY #1

EMT suspended for inadequate report

Later, commented that supervisor a “scumbag” and a “17”

Employer terminated

CASE STUDY #2

Salesman Terminated

CASE STUDY #3

Employees of non-profit assisted victims of domestic violence

One posts Facebook comment: “Lydia Cruz, a coworker feels that we don’t help our clients enough. I about had it! My fellow coworkers how do u feel”

Four off-duty employees respond and object to assertion by Cruz

Cruz complains to supervisor about being bullied on-line

All five employees terminated for “bullying and harassment” of Cruz

LEGAL IMPLICATIONS

NATIONAL LABOR RELATIONS BOARD

Signs of Aggressive activity

NLRB

Why?

NATIONAL LABOR RELATIONS ACT

Covers most private-sector employees

“Section 7” rights:

guarantees employees the right to “engage in” “concerted” and “protected” activities with

other employees

Protected activities include:

Discussing wages, discipline, unions

Complaining about policies, supervisors

Complaining about terms/conditions of employment

NLRB counsel: not “new” but “catch up”

SOCIAL NETWORKING POLICIES (NLRB)

Activity may be protected if

Done on employee’s time and equipment

Related to terms/conditions of employment or exercise of NLRA rights

Involves “concerted” activity

Swearing/name calling may not justify termination

Overbroad policies will be scrutinized

NLRB ON SOCIAL MEDIA POLICIES

Examples of prohibitions/policies NLRB says can be “overbroad”

Inappropriate Discussions

Gossip

Defamation

Disparagement

Privacy

Confidentiality

Restricted Use of Company Name, Address & Logo

DRAFTING YOUR SOCIAL MEDIA POLICY

You CAN prohibit social media postings that:

Make comments about coworkers or supervisors or the employer

that are vulgar, obscene, threatening, intimidating, or harassing

That constitutes illegal discrimination or harassment

Carry out illegal conduct

Are maliciously untrue

Specific examples are key

Disclaim that not interfering with NLRA rights

CLARITY FROM NLRB CASES

Bring Your Own Device Policy

(BYOD)

Benefits

Employees carry single device

Convenience/practical response to technology

Reduce costs of devices to employer

Risks

Security concerns

Potentially higher IT costs

Disaster for discovery in litigation

Erosion of personal/business spheres

BYOD EMPLOYMENT LAW ISSUES

Personal Privacy protections

Computer Fraud and Abuse Act

Stored Communications Act

Wage & Hour considerations

Harassment/hostile work environment

Security of confidential information

BYOD POLICY

Broad Authorization to:

Monitor use and content

Wipe data upon termination/lost device

Turn over devices for investigations

Diminished expectation of privacy

Obligation to notify if lost/stolen

Require data encryption/password protection

SOCIAL MEDIA - POST EMPLOYMENT CONCERNS

SOCIAL MEDIA – OWNERSHIP

Who gets the friends when the employment relationship breaks up?

BEST COMPANY PRACTICES TO PROTECT SOCIAL MEDIA

Company establishes Account (name and content)

Structural protection

Adopt uniform branding, content and style guides

Assign employees to administer SM accounts

Anticipate separation of employment

Reference SM in restrictive covenants

Have manager also keep account/password information

Take quick action upon separation of employment

MOST IMPORTANT: HAVE A POLICY

Written agreement/policy that clarifies rights and duties

Blogs, accounts are company property

Employee must transfer all account information upon termination

Administering SM is part of employee’s job

Remember NLRB admonitions: Write policies in pencil rather than in pen

SOCIAL NETWORKS AND RESTRICTIVE COVENANTS

Nonsolicit of employees

Nonsolicit of customers

Cases not well developed

AMWAY GLOBAL V. WOODWARD (E.D. MICH 2010)

Former Employee Maintained and operated blog

Blog formed basis of violation of nonsolicit provision

“If you knew what I knew, you would do what I do”

Employee: blogs passive and untargeted

Court disagreed:

“Common sense dictates that it is the substance of the message conveyed, and not the medium through which it is transmitted, that determines whether a communication qualifies as a solicitation.”

ANALYSIS

Connection (itself) unlikely to be considered violation.

Would same message conveyed by email or letter be violation?

Two critical factors:

Who received the message?

What is the message?

FAMILIAR FRAMEWORK

TAKEAWAYS

Use Social Media as a tool

Review your policies regularly

Be careful with discipline (NLRB)

Be flexible –legal context evolving!

BEYOND THE WATER COOLER

The Impact of “Socializing” and Managing Social Media in the Workplace

Silvia King, FGP International

Mark Bakker, Wyche P.A.

August 26, 2014