How Tweet It Is – Social Media In The Workplace

1

How Tweet It Is – Social Media In The Workplace

Hope B. Eastman, Esq.James R. Hammerschmidt, Esq.

Ethan L. Don, Esq.

2

Overview

Introduction to Social Media Issues and Why You Should Care About ThemNLRB Application of “Concerted Activity”Protections to Employee Use of Social MediaDrafting Social Media PoliciesOwnership of Social Media ContentDrafting Ownership PoliciesConclusion and Q+A

3

Overview: “Social Media” Defined

“Social Media” is a very broad termCan include:

social networking (Facebook, LinkedIn, Twitter)

collaborative projects (Wikipedia)

blogs content communities (Flickr, YouTube, Metacafe)

virtual game worlds (World of Warcraft)

virtual social worlds (Second Life, Onverse)

more . . . (CNN iReport)

4

Overview (cont.)

Social Media now pervades many workplacesAccessed through personal devices or employer devicesOn and off of “work” timeBoth personal use and business use

5

Overview: Why Employers Should Care

This is not just a passing topicNLRB has jurisdiction over all employers under the National Labor Relations Act (“NLRA”) Cracking down on both social media policies and the underlying, related policies

6

Where Do The Issues Arise?

At all stages of the employment processHiring (reviewing posts, friending, or asking for passwords)Harassment (effectuated, in whole or in part, by the use of social media)Compliance with policies and discipline for violationsPotential concerted activity under the NLRATermination (social media as a reason for and social media after, if in violation of a settlement or separation agreement)Ownership

7

Unsettled, Developing Law

Still only a handful of reported casesNLRB General Counsel has issued three reports, August 2011, January 2012 and May 2012, summarizing recent NLRB decisions and providing guidance on this “hot topic”

8

NLRA Sections 7 and 8

Rights of EmployeesSec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection[.]

Unfair Labor PracticesSec. 8. (a) [Unfair labor practices by employer] It shall be an unfair labor practice for an employer--(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [of this title.]

9

NLRB and Social Media Policy

General rule: NLRB 2-step test to determine if a work rule (including social media) would “reasonably tend to chill employees in the exercise of their Section 7 rights”Rule applies only to non-supervisory employees

10

Three major points:Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employeesAn employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employeesAmbiguous or overbroad language will be found unlawful; use examples or provide specific clarification of rules and make savings clauses understandable to laypersons

NLRB Decisions Summary

11

NLRB Decisions Summary (cont.)

Reports summarize total of 35 casesSignificant focus on application of employer policies, NLRA Section 7 rights, overbroad policy language and the use of disclaimers or savings clausesTerms like “appropriate,” inappropriate,”“professional,” need to be removed from policies or specifically definedKey is “context”Can still forbid plainly egregious conduct

12

Disclaimers / Savings ClausesMay be the best way to not run afoul of the NLRB/NLRA BUT

Must explicitly describe Section 7 rightsMust not be applied to chill Section 7 rights

Not clear that such clauses alone will suffice


13

Ex-post facto decision makingIt appears that the NLRB, in at least some cases, is determining whether Social Networking activity constitutes concerted activity by the responses of some co-workers; no consistent level of response yet establishedRecent E.D. Virginia case – “liking” a Facebook post was not enough for 1st Amend. protection; raises the question of whether the same action would be protected under Section 7NLRB ALJ Decision Jan. 3, 2012 – “liking”constituted participation and rose to the level of concerted activity


14

NLRB GC Third Social Media Report

Just issued on May 30, 2012Summarizes 7 casesIn 6, some provisions are found unlawfulIn the 7th, the entire policy is lawful and the NLRB attached it to the report as an exampleEssentially, NLRB is providing at least a template for one type of acceptable policy

15

NLRB GC Third Social Media Report (cont.)

Thrust of the analysis of all 7 cases is:Employers MUST provide descriptions, examples, or other clarification for rules, prohibitions, cautionary statements, or any other provisions, or seriously risk a finding that the policy or parts of it is unlawfully vague or overbroadDisclaimers MUST be written so that a layperson understands his or her rights and what activities are protected, despite other language in the policyIncorporation of other policies (confidentiality, harassment, etc.) must be done carefully and with a critical eye toward protected activities

16

Drafting Social Media Policies

Difficulties in crafting and enforcing social media and social networking policies due to developing status of the law and irreconcilable NLRB decisionsLaw is evolving and playing catch-up, both in regards to use of social media and social networking, ownership of social networking accounts, and rights and obligations of employers

17

Drafting Social Media Policies: Elements

Definitions of Social Media and NetworkingBroad but with specific examples (e.g., personal blogs, Facebook, LinkedIn, Twitter, YouTube, wiki postings, and other websites/blogs/forums not affiliated with employer)

General Policy/AcknowledgmentRecognizing the prevalence of social media for both personal and work use and explaining that because the information posted to such sites is widely accessible, employees should have no expectation of privacy in their postings or other social networking activities

18

Drafting Social Media Policies: Elements (cont.)

Work UseCan permit use on both employer equipment and employer timeCan prohibit use on employer equipment, at any time, or personal equipment during work-time, unless such activity is directly related to, and necessary, for an employee’s performance of his or her job responsibilitiesRestrict use of employer email addressesCannot restrict right to engage in protected activities on employer’s premises during non-work time and in non-work areas Need to differentiate between authority to use for approved purposes and authority to speak on behalf of the employer

19


Personal UseAt work or during work hoursAny other place or timeRight to monitor for violations/lack of privacyPotential for personal liability (defamatory, threatening, obscene, etc.)Employees who identify as associated with employer must make it clear that posts/views are individual and not that of the employer

20


Incorporation of other policiesAll other policies (confidentiality, discrimination, harassment, etc.) still applicable and incorporatedApplies to both work and personal use

21


DisclaimerCan mention Section 7 rights, BUT MUST DESCRIBE THOSE RIGHTS IN PLAIN TERMS to have any hope of being effectiveIntended to make reading the policy in a manner which curtails or chills Section 7 rights unreasonableNot yet clear that the NLRB will accept such a disclaimer aloneMay not be necessary if policy is very narrowly drafted

22


ViolationsPolicy needs to notify employees that violation of the social media and social networking policy may lead to discipline including terminationAlso needs to notify employees that violation of other policies, through the use of social media and social networking, may lead to discipline including termination

23


Definitions of Terms in PolicyCannot use undefined terms like “professional”or “appropriate” when describing conduct of employeesNeed to provide some examples or descriptions to avoid vague and generalized terms that do not provide guidanceFailure to provide definitions, examples, or descriptions may render the policy overbroad and unenforceable

24

Train supervisors and HR personnel regarding the policy and its applicationConsultation with counsel regarding drafting and enforcing policies is strongly advised, including training, and disciplinary actionsConsider the interplay between ownership of social media and the social media policy

Drafting Social Media Policies: Additional Considerations

25

Ownership of Social Media Content

It is not enough to have the policies regarding use of social media, you must understand ownership of social media content as wellRelates to authorized use of social media at work and use of employer email addresses, and may involve identification of employee as representative of employer

26

LinkedIn, Facebook, Twitter, Google+ accounts serve dual/mixed purposes:

Personal social networkingBusiness marketing & networkingMix of business & personal information

Often employees don’t or can’t create separate accountsSome employers encourage or require social networking as part of the job

Ownership of EmployeeSocial Media – The Wild, Wild West

27

Complicated Ownership Issues

Employee or employer ownership of site, page or link?Employee privacy legislation

Maryland House Bill 964 – User Name and Password Privacy ProtectionCalifornia AB 1844, Illinois (The Right to Privacy in the Workplace Act) & 10 OthersFederal Social Networking Online Protection Act (SNOPA)

28

Myriad of Legal Issues

Breach of ContractComputer Fraud and Abuse ActTrade Secret ActConversionFiduciary Duties of LoyaltyTortious Interference with BusinessInvasion of PrivacyWrongful Discharge

29

Developing Case Law

Regas Christou v. Beatport, LLC (Colo.)Former employee took login information for company MySpace pageCourt held MySpace page contained trade secret information, which defendant misappropriatedCourt applied same “old school” analysisKey to employer success: it took sufficient steps to protect MySpace informationEmployer must think about protection of digital information

30

Developing Case Law (cont.)

Linda Eagle v. Edcomm, Inc. (Penn.)Employer policy required maintenance of LinkedIn account

Account developed, monitored and maintained by employerEmployee had to provide employer with all passwords and all employer-related content and connections

Employer seized employee LinkedIn siteEmployee sued and Employer countered

31


Phone Dog v. Kravitz (Calif.)Employee hired to write product reviews and to post and link blog entriesEmployee maintained Twitter account using employer provided password/handle – 17,000 followers!!Employer refused to turnover control of Twitter account upon terminationEmployer’s trade secret & tort claims survived early dismissal

32


Ardis Health v. Nankivel (New York)Employee responsible for all company social media & on-line marketingEmployee signed “work for hire” & confidential property agreementUpon termination, employee refused to provide all password/log-in informationCourt found employee’s unauthorized retention of information supported a conversion claim

33

Drafting Ownership Policies & Agreements

Traditional employment agreements take on greater importance:

Work for hireConfidentiality & proprietary informationNon-compete, non-solicitation & non-disclosure

Agreements specifically addressing who owns social media

34

Drafting Ownership Policies & Agreements

Social Media PolicyWhether the employer or employee may create a social media account for business use on his/her ownWhether the account name should identify or incorporate the company nameDefine who has access to settings/passwordsDefine who may maintains the accountDefine procedures of what happens to account, passwords, etc. at end of employment

35

Conclusions & Q+A

Sample policyOpen the floor for questions

Thank you

We hope you will join us next time

How Tweet It Is – Social Media In The Workplace

Documents

Transcript of How Tweet It Is – Social Media In The Workplace