Facebook and Twitter and LinkedIn, Oh My: The Employment Law Implications of Social Networking
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Facebook and Twitter and LinkedIn, Oh My: The Employment Law Implications of Social Networking Aisha Sanchez, Associate Andrew Tanick Managing Partner, Minneapolis Office Ford and Harrison, LLP
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What employers should and shouldn't do to monitor and control their employees' work-related social media use, and what employers should and shouldn't do to effectively use social media in connection with their own labor and employment practices.
Transcript of Facebook and Twitter and LinkedIn, Oh My: The Employment Law Implications of Social Networking
Facebook and Twitter and LinkedIn, Oh My:
The Employment Law Implications of Social
Networking
Aisha Sanchez,
Associate
Andrew Tanick Managing Partner, Minneapolis Office
Ford and Harrison, LLP
Presenter
Andrew Tanick
Managing Partner, Minneapolis Office
Ford and Harrison, LLP
Overview
• Pre-Employment Considerations
• Current Employee Considerations
• Looking Forward
Brands Employer as
•Progressive •Relevant •Informed
Professional Networking
•Enhanced knowledge •Broadened thinking •Better work product
Provides Employees
•Positive Distraction •Incubation time •Information
Increased (if allowed) or
Decreased (if banned)
Employee Engagement
Employer
Branding Promotes
Creativity
Professional
Networking
Employee
Engagement
Pre-Employment Considerations
Efficient and Prudent Recruitment
Pre-Screening Hypothetical
• John, in HR, is about to make a final offer to a candidate for the position of VP of Sales, managing a sales team of 50 people across the Southeast and involving significant travel. The company will provide him a company car and an expense account. John looks on Facebook to see if the candidate has an online presence . . .
This is what John finds…
• My hobbies are
partying and
drinking…
Pre-Employment: Risks
• Too much information!
• Inconsistent or unnecessary screening
• Disparate search results (i.e.,
uncommon/“un-American” names)
• Violation of sites’ terms of use
• “I interviewed on Monday, you looked at
my page on Tuesday, you rejected me
on Wednesday?”
Hiring Safety Nets
Best Practices for Online Candidate Research
Online Candidate Research: Best Practices
• Develop policies/procedures to ensure consistent
application and proper documentation
• Compare what you discover with questions you could
and would ask in an interview
• Review applicable terms of service
• Use online vetting as late in the hiring process as
possible
• Use EEOC guidance on background checks as model
• Consider giving notice to applicants
• Outsource initial vetting
Current Employees
You Hired Them . . . Now What?
0
5
10
15
20
25
30
35
40
45
What will my
boss think?
What will my
colleagues
think?
What will my
clients think?
Alwaysconsider
Sometimesconsider
Rarely/Neverconsider
Don'tKnow/Refuse
Employees Report on Workplace
Considerations Made while Online
Source: Deloitte LLP 2009 Ethics & Workplace Survey
Protecting the Workplace &
Business Interests • Protect Company Reputation
• Protect Trade Secrets
• Avoid Third-Party Liability
• Provide Prompt and Remedial Response to
Harassment
Protecting Company Reputation
• “Do I agree with [Yahoo’s] practices? No. Do I like
those practices? Hell no. It’s insulting and
disrespectful.”
• Fast food workers post YouTube video of
themselves contaminating customer food.
• New England Patriots cheerleader fired for
provocative Facebook photos.
• CNN fired Middle Eastern editor for her tweet
admiring a late cleric affiliated with Hezbollah.
Poor Reflections: The “Queen of Sky”
• An airline employee,
Eileen, “Queen of Sky,”
posted these pictures of herself,
in uniform, on her blog
• Make that “former employee”
Protecting Company Trade Secrets
Avoiding Third-Party Liability
• Employees divulging
customer/client/patient personal
information
• Employees defaming competitors’
products, services, and business
models
• Employers reducing exposure in
negligent retention claims
Protecting Employees From Harassment
• Online harassing communications might
be considered more “severe and
pervasive” than analog forms
• If subjects of such online harassment
inform their employer, the employer
should take prompt remedial action in
response
Examples: Anti-Coworker
“So I hate my co-workers. Well, not hate but extreme dislike. I have this one co-worker who has absolutely no manners at all …”
Posted by “SingleMomKnits”
– Fitchburg, MA, United States
– I am 31 years old. I am a wife (to Ryan, my high school sweetheart)…
Examples: “Pro”-Coworker
“I consider myself a
happily married man,
41 years of age. … I
recently developed a
crush on a co-worker
who is about 15 years
younger than me. …”
Posted by “Raisalongi”
Very “Pro”-Coworker
“I’ve been working with these two girls every
day for four years and every day I want to have
crazy sex with at least one of them. I want
them to [expletive deleted] me and [expletive
deleted]. … How do I keep my urges in
check?”
Posted by “Adamhum”
MONITORING RISKS
Possible Claims of Employees
• Whistleblower/retaliation
• Wrongful termination
• Non-work conduct protected (some states)
• Discrimination
• Protected political speech (some states)
• Harassment
• Privacy
• Violation of NLRA or RLA
Risk: Chilling Protected Concerted Activity
• Under the NLRA, employees have a right to “engage in
concerted activity for the purpose of collective bargaining or
for other mutual aid and protection.”
• “Protected activity” = two or more employees (or one
employee with the authority of others) + relates to terms
and conditions of employment
• Activity that is otherwise protected may lose its protection if
it is overly disruptive and “opprobrious” or shameful.
• If an employee’s online activity comes within the scope of
protected concerted activity under the NLRA, then it may
not be the basis for discipline or termination.
Monitoring Employees: Best Practices
Social Media and Company Policy
• Decide on company philosophy from outset
• Revise existing policies to incorporate online conduct
• EEOC and confidentiality policies apply equally to online conduct
• Maintain separate social networking policy and have employees acknowledge it
• State explicitly that employees have no reasonable expectation of privacy in online conduct done using employer’s resources
• Require a disclaimer: “my views, not my employer’s”
• Discourage supervisors from “friending” subordinates
• Prohibit use of false online identities to gain access to private profiles
• Apply the least intrusive monitoring possible (courts and juries prefer)
Monitoring Employees: Best Practices
Disciplining Employees
• Would the content of the post constitutes grounds for discipline if it had been
spoken or written in another form?
• Is any other employee facing potential or real discrimination or harassment as a result of the posting?
• Did or could any harm come to the company or a third party from the post?
• Did the employee share confidential information about the company, another employee, a third party, or a customer? Did the post violate trade secret laws?
• Does someone from the company routinely monitor employees’ social media use? In other words, could the employee make the argument that he or she was targeted in some way?
• If the company has a stated policy on social media use, did this employee receive that policy? Does this conduct clearly violate that policy?
• Were multiple employees engaged in the questionable conduct?
• Did the post relate to the terms and conditions of employment?
Copyright © 2011 TK Carsites. All rights reserved. www.tkcarsites.com.
Got a Question? Ask our Expert!
Ford & Harrison LLP
Andy Tanick
(612) 486-1623
Aisha Sanchez
(813)261-7849
