SOCIAL MEDIA IN SOCIAL MEDIA IN CALIFORNIA: CALIFORNIA: CALIFORNIA: CALIFORNIA:

How Far You Can Legally Go How Far You Can Legally Go T T P li W k ’ P li W k ’ O li O li To To Police Workers’ Police Workers’ Online Online Conduct On Conduct On FacebookFacebook And And Other Social Networking Other Social Networking

SitesSitesSitesSitesJason A. Weiss, Esq. Jason A. Weiss, Esq.

Monica M. Quinn, Esq.Monica M. Quinn, Esq.

The legal risks associated with peering into applicants’ and g p g ppemployees’ online activities, and best practices for minimizing potential trouble spots

Best practices for using Facebook MySpace LinkedIn and Best practices for using Facebook, MySpace, LinkedIn, and other sites to conduct “background checks” in California

When you may discipline an employee or refuse to hire y y p p ysomeone based on the information gleaned from social networking sites

Wh t h i l di li d th ti l Why you must have a social media policy and the essential language to include

What frontline managers and supervisors need to know g pabout policing social networking sites so they don’t legally misstep under state and federal law

H i i d b fi f How your organization may use and benefit from your employees’ use of social media

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The Increased Use of Social The Increased Use of Social The Increased Use of Social The Increased Use of Social Media and Social NetworkingMedia and Social Networking

In February 2009 – social networking sites eclipsed personal e-mail in global reach.

Facebook reports that 50% of its 350 million users access Facebook reports that 50% of its 350 million users access the site at least once a day.

If Facebook were a country, it would be the third largest in y gthe world, approaching 600 million users.

Twitter users post 90 million “tweets” per day.

Social media will replace email as the primary vehicle for interpersonal communications for 20 percent of business users by 2014.y

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The Legal Risks Associated With Peering Into The Legal Risks Associated With Peering Into Applicants’ and Employees’ Online Activities Applicants’ and Employees’ Online Activities Applicants and Employees Online Activities, Applicants and Employees Online Activities, and Best Practices for Minimizing Potential and Best Practices for Minimizing Potential

Trouble SpotsTrouble Spots

Right to Privacy – California employees are protected by a right to privacy.

Public vs. Private – The protection may vary.

Fair Credit Reporting Act/Investigative Consumer p g gReporting Act

Discrimination Claims

Pre-employment inquiries – Plaintiff ’s counsel may request statistical evidence of the applicant pool.

Adverse employment actions

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The Legal Risks Associated With Peering Into The Legal Risks Associated With Peering Into Applicants’ and Employees’ Online Activities Applicants’ and Employees’ Online Activities Applicants and Employees Online Activities, Applicants and Employees Online Activities, and Best Practices for Minimizing Potential and Best Practices for Minimizing Potential

Trouble Spots Trouble Spots (cont’d.)

Labor Code 96(k) – Prohibits employers from taking employment actions against employees because of lawful off-duty conduct

Labor Code 232 and 232.5 – Allows employees to discuss their wages/working conditions and prevents the employer their wages/working conditions and prevents the employer from disciplining or discharging an employee for doing so

California Labor Code Sections 1101-1102 – Prohibits an employer from taking adverse action against an employee because of his or her political activities or influencing an employee’s political activitiesp y p

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Best Practices for Using Best Practices for Using FacebookFacebook, , MyspaceMyspace, , LinkedIn and Other Sites to Conduct LinkedIn and Other Sites to Conduct LinkedIn, and Other Sites to Conduct LinkedIn, and Other Sites to Conduct

“Background Checks” “Background Checks”

FCRA/ICRA B f d f f b k d FCRA/ICRA – Before conducting any form of background check on an applicant, make sure to obtain the applicant’s permission to do so.

Discrimination Claims

Do so in a consistent mannerDo so in a consistent manner

Have a neutral party conduct the search

C id hi i l di i l f h Consider searching social media sites only after the initial in-person interview

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Best Practices for Using Best Practices for Using FacebookFacebook, , MyspaceMyspace, , LinkedIn and Other Sites to Conduct LinkedIn and Other Sites to Conduct LinkedIn, and Other Sites to Conduct LinkedIn, and Other Sites to Conduct

“Background Checks” “Background Checks” (cont’d.) (cont’d.)

D Cl Discrimination Claims

Identify the criteria used

Discuss your findings with the applicant

Retain a record of pages viewed

Do not lie about your identity to gain information

Consult with employment counsel Consult with employment counsel

Privacy Claims

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When You May Discipline an Employee or Refuse to When You May Discipline an Employee or Refuse to Hire Someone Based on The Information Gleaned Hire Someone Based on The Information Gleaned Hire Someone Based on The Information Gleaned Hire Someone Based on The Information Gleaned

From Social Networking SitesFrom Social Networking Sites

Refusal to Hire – Is this discrimination? Refusal to Hire Is this discrimination? Discipline

Social Media Abuses – Employers must protect employees f h from harassment.

National Labor Relations Act – An employer’s right to take action against the employee’s conduct related to certain working conditions may be limited. • NLRB Claims Termination Due to Facebook

Comments is Illegalg• Hospital Technician Fired Over Facebook Post

Health Insurance Portability and Accountability Act B h f C fid i li A Breach of Confidentiality Agreement

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When You May Discipline an Employee or Refuse to When You May Discipline an Employee or Refuse to Hire Someone Based on The Information Gleaned Hire Someone Based on The Information Gleaned Hire Someone Based on The Information Gleaned Hire Someone Based on The Information Gleaned

From Social Networking Sites From Social Networking Sites (cont’d.) (cont’d.)

Discipline Federal Trade Commission Guidelines – December 2009

guideline creating liability for companies whose employees endorse or give testimonials about the employer’s products on social media sites without disclosure.

Defamation of Co-Workers and Others Trade Libel of Employers and Competitors Lanham Act liability for “false advertising” Lanham Act - liability for false advertising Sarbanes-Oxley Act, OSHA & California Labor Code

Sections 1102.5-1102.8 - protect whistleblowinglemployees

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Off Duty Conduct Off Duty Conduct ––C E l B Di i li d?C E l B Di i li d?Can an Employee Be Disciplined?Can an Employee Be Disciplined?

Blogging

Private-sector employees do not have a constitutional right to free speech.

Under what situations can an employer discipline an employee for writing details about his or her employment in a blog? What if your employee is revealing trade secret or confidential information otherwise unknown to the public? Keep in mind also the California Labor Code provisions with respect to discussing wages, the terms and conditions of

l ki di i li i d hi l bl iemployment, working conditions, politics and whistleblowing.

Drug Testing

Moonlighting

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Off Duty Conduct Off Duty Conduct Off Duty Conduct Off Duty Conduct ––Can an Employee Be Disciplined? Can an Employee Be Disciplined? (cont’d.) (cont’d.)

Arrests and Convictions –How does the crime affects the employee’s ability to do his or her job? It is possible this employee could claim he or she was a victim of disparate impact p y p pdiscrimination?

Engaging in Political Protests

Fraternization with Subordinates – Such policies may be illegal.

Smoking – California Labor Code 6404.5 requires employers to ban smoking in the workplace. g p

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The Essential Language to Include in Your The Essential Language to Include in Your S i l M di P liS i l M di P liSocial Media PolicySocial Media Policy

Decide where your Company stands on issues first.

Social Media Policy

Reasonable Personal Use – IBM’s Approach – Don’t forget about d j byour day job

All other company policies must be followed

Don’t overdo it

Blogging

Not be done during working hours or using company resources.

Not permitted to disclose confidential company information Not permitted to disclose confidential company information

Treat others respectfully

Confidential Information

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The Essential Language to Include in Your The Essential Language to Include in Your Social Media PolicySocial Media Policy

Right to Privacy

Eliminate privacy expectations – Quon v. City of Ontario

Inform employees that the company will be regularly monitoring any company equipment

Such items are the property of the employer

You can access them with no additional prior warning

Computer Fraud and Abuse Actp

Stored Communications Act

Communications Privacy Act

For All Policies For All Policies

Ensure they are enforced

Be consistent

E i d j d t ibilit d t i Exercise common sense, good judgment, responsibility, and staying within legal parameters

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What Frontline Managers and Supervisors Need to What Frontline Managers and Supervisors Need to Know About Policing Social Networking Sites so They Know About Policing Social Networking Sites so They g g yg g y

Don’t Legally MisstepDon’t Legally Misstep

Supervisor/Subordinate Relationshipsp p Steps to Take When You Receive Off-Duty Conduct

Information Verify the information to the extent possible; Verify the information, to the extent possible;

If the off-duty conduct has no bearing on the employee’s job, don’t discuss the situation with the employee;

Determine if you are permitted to act on the information; Determine if you are permitted to act on the information;

Ensure you keep the information confidential on a need-to-know basis;

Be careful about what you say to customers and other employees; Be careful about what you say to customers and other employees;

Weigh your options: keep, suspend or terminate the employee depending on the severity of the infraction and strength of the evidence; andev e ce; a

Consult legal counsel where appropriate.

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What Frontline Managers and Supervisors Need to What Frontline Managers and Supervisors Need to Know About Policing Social Networking Sites so They Know About Policing Social Networking Sites so They

Don’t Legally Misstep Don’t Legally Misstep (cont’d.)(cont’d.)

Should We Discipline The Employee For This Conduct?

Is the conduct lawful?

Is the conduct protected?

Is this conduct protected by any of the California Labor Code p y yprovisions?

Is there a relationship between the conduct and the job?

Does the conduct cast your business in a negative light? y g g

If disciplinary action is taken, ensure that similar discipline is imposed on all similar situations.

Consult legal counsel before taking any disciplinary action. g g y p y

Miscellaneous

Can references be provided?

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How Businesses/Employers May How Businesses/Employers May p y yp y yUse/Benefit From Employees’ Use Use/Benefit From Employees’ Use

of Social Mediaof Social Mediaof Social Mediaof Social Media

Enhance employee productivity

Confirm discrimination or harassment

Reveal dissatisfaction with the workplace

Consider an approval process if social media will be used Consider an approval process if social media will be used

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Jason Weiss is a partner in the firm's Orange County office where he practices employment law and business litigation. Jason specializes in representing employers from multinational corporations to start-representing employers, from multinational corporations to start-ups, on a wide variety of employment and labor relations matters, ranging from wrongful termination and unfair competition lawsuits to preventive counseling and advice.

Jason's employment litigation experience includes handling cases at Jason s employment litigation experience includes handling cases at the trial and appellate levels of both state and federal courts and in arbitration. He also represents management in wage/hour matters before the U.S. Department of Labor and the California Labor Commissioner, discrimination claims filed with the U.S. Equal

Jason A. Weiss, Esq.Jason A. Weiss, Esq.PartnerPartnerAll M k L k G bl All M k L k G bl

Employment Opportunity Commission and the California Department of Fair Employment and Housing, Sarbanes-Oxley Act whistleblower claims, unemployment insurance claims and Section 132a discrimination petitions filed with the Workers' Compensation Appeals Board Allen Matkins Leck Gamble Allen Matkins Leck Gamble

Mallory & Natsis LLPMallory & Natsis LLP1900 Main Street, 5th Fl1900 Main Street, 5th FlIrvine, CA 92614Irvine, CA 92614--73217321(949) 553(949) 553--1313(main)1313(main)

Appeals Board.

Jason's practice includes the drafting and implementation of employee handbooks, workplace policies and employment contracts. He has also guided employers through reduction-in-force programs, including compliance with state and federal laws such as the Worker ( )( ) ( )( )

(949) 851(949) 851--5426 (direct)5426 (direct)(949) 553(949) 553--8354(fax)8354(fax)jweiss@allenmatkins.comjweiss@allenmatkins.comwww.allenmatkins.comwww.allenmatkins.com

including compliance with state and federal laws such as the Worker Adjustment and Retraining Notification Act ("WARN"). Jason regularly conducts in-house training seminars and workshops for clients, and provides day-to-day counseling and advice.

J ' ti t d t th b i l h h h Jason's practice extends to the business law arena, where he has experience and expertise in a range of business issues including contract disputes, trade secrets, interference claims, unfair competition, and intellectual property disputes. 17

Monica M. Quinn is a Partner in the firm’s Los Angeles office, where she practices in the Labor and Employment Law Department. She is experienced in both litigation and transaction matters. Monica handles all employment disputes including wrongful termination, harassment, discrimination, retaliation, wrongful termination, harassment, discrimination, retaliation, constructive discharge, wage/hour and other employment-related matters at all levels of state and federal court. She also defends employers before administrative agencies, such as the Equal Employment Opportunity Commission, the Department of Fair E l d H i d h W k ’ C i

Monica M. Quinn Esq.Monica M. Quinn Esq.PartnerPartnerAll M k L k G bl All M k L k G bl

Employment and Housing and the Workers’ Compensation Appeals Board, and in arbitration proceedings.

Her employment law counseling practice includes providing advice on employee handbooks and policies, training, wage and

Allen Matkins Leck Gamble Allen Matkins Leck Gamble Mallory & Natsis LLPMallory & Natsis LLP515 South Figueroa Street, 9th Fl515 South Figueroa Street, 9th FlLos Angeles, CA 90071Los Angeles, CA 90071--33013301(213) 622(213) 622--5555 (main)5555 (main)

hour issues, employee discipline, trade secret issues, drug and alcohol testing, privacy, leave issues, harassment and discrimination laws, and all other areas of personnel administration.

She is the co-author of a book chapter entitled "Social ( )( ) ( )( )(213) 955(213) 955--5615 (direct)5615 (direct)(213) 620(213) 620--8816 (fax)8816 (fax)mquinn@allenmatkins.commquinn@allenmatkins.comwww.allenmatkins.comwww.allenmatkins.com

Networking and Off-Duty Conduct."

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