Social Networking Websites: Employment Law...

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Social Networking Websites: Employment Law Pitfalls

Avoiding Discrimination, Violation of Privacy, and Fair Credit Reporting Act Claims

presents

Today's panel features:Christopher J. Murphy, Partner, Saul Ewing, Philadelphia

Marcia N. Jackson, Counsel, Akin Gump Strauss Hauer & Feld, DallasWayne E. Pinkstone, Partner, Fisher & Phillips, Radnor, Pa.

Tuesday, August 18, 2009

The conference begins at:1 pm Eastern12 pm Central

11 am Mountain10 am Pacific

The audio portion of this conference will be accessible by telephone only. Please refer to the dial in instructions emailed to registrants to access the audio portion of the conference.

A Live 90-Minute Audio Conference with Interactive Q&A

©Copyright 2009 All rights Reserved

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Social Networking Websites:Employment Law Pitfalls

August 18, 2009

Presented by:

Christopher J. Murphy, Esquire


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Avoiding the PitfallsCurrent Trends - - Blurring the Lines

Between Professional and Private Lives – Potential Labor and Employment Law Implications of Social Networking (“SN”): Twitter®, Facebook®, MySpace®, LinkedIn®And Whatever Tomorrow Will Bring. . . .


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Avoiding the PitfallsStatistics Regarding Utilization of SN Sites*:Management –

• 74% believe such sites put firm/brand reputation at risk

• 15% consider these risks at the Board level• 17% have risk mitigation policy/program*“Social Networking and reputational risk in the work place” Deloitte LLP 2009 Ethics & Workplace Survey results: Available at http://www.deloitte.com/dtt/cda/doc/content/us_2009_ethics_workplace_survey_150509.pdf


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Avoiding the Pitfalls

Employer v. Employee• 60% of managers say they have the “right

to know”• 53% of employees say SN content is none

of the company’s business• 33% of employees don’t consider the

business implications of postings


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Employee Utilization:• 55% visit SN sites at least once a week• 20% admit visiting SN sites during work

hours


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Executive Utilization:• 31% of CEOs are on Facebook• 30% use SN as part of

business/operations strategy• 23% use SN for recruiting purposes


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Current Legal Trends• Claims involving Private Sector

Employers• Claims involving Public Sector

Employers


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Avoiding the PitfallsPrivate Sector Claims

Pietrylo v. Hillstone Restaurant Group, C.A. No. 06-5754 (D.N.J.) – after being terminated for posting derogatory statements on a password protected MySpace account, several employees of the Houston’s restaurant chain sued their employer for violating the Stored Communications Act, 18 U.S.C. §§ 2701-11, for improperly accessing those restricted postings. After a five-day jury trial, the company was found liable for violating the SCA. Although the damages awarded were nominal, plaintiffs’ counsel has sought $125,000 in attorney’s fees.


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NLRA Issues -- Section 7 protects employees' right to form, join and assist labor organizations, engage in collective bargaining, and to engage in other concerted activities for mutual aid or protection. This protection typically extends to comments/complaints regarding “terms and conditions” of employment. For example, a rule broadly prohibiting discussion of wages is facially violative of the NLRA and an unfair labor practice. See Guardsmark v. NLRB, 475 F.3d 369, 374 (D.C. Cir. 2007). Disciplining an employee for violating such a rule is also an unfair labor practice. The Labor Board and the Courts are just beginning to grapple with how e-mail fits into the federal labor paradigm. See Guard Publishing Company v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). Employees posting workplace-related commentary on SNs is the “next frontier” in this evolving landscape and it fill unfold under a pro-union/pro-employee Labor Board.


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Doe v. XYZ Corp., 382 N.J. Super. 122 (App. Div. 2005) – negligence-based cause of action recognized against employer for failing to exercise reasonable care to prevent harm to non-employee third-parties (employee’s wife and minor daughter) arising from employee’s improper use of computer systems to post child pornography on the Internet.


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Stengart v. Loving Care Agency, Inc., 408 N.J. Super. 54 (App. Div. 2009) – notwithstanding comprehensive electronic communications policy, an employee’s e-mails to her counsel, sent using employer’s computer systems and a personal e-mail account, were covered by the attorney/client privilege. These e-mails were discovered after employee resigned and sued the Company for discriminating against her. Case remanded for, inter alia, consideration of sanctions against counsel.


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Avoiding the PitfallsPublic Sector Claims

“Domelights.com” Case (The Guardian Civic League v. Philadelphia Police Department, Civil Action No. 09-03148) –class action suit by organization representing black police officers against police department and others alleging hostile work environment and other civil rights violations relating to the maintenance of a web site, www.domelights.com, allegedly containing racially offensive material. The website allegedly was maintained by white police officers, including at least one supervisor. The suit further alleges that police department management was aware of the website and its content.


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Claims Against Public Schools/Colleges

Yoder v. University of Louisville, 2009 WL 2406235 (W.D.Ky. 2009) – nursing student reinstated after being dismissed from nursing school for posting on MySpace; court’s decision based on inadequacies in the school’s honor code and confidentiality agreement.


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Key v. Marion Gordon “Pat” Robertson, 2009 WL 1684412 (E.D. Va. 2009) – law school student’s claims based on his dismissal from law school for postings on Facebook and school-related website dismissed on summary judgment.


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Spanierman v. Hughes, 2008 WL 4224483 (D. Conn. 2008) – high school teacher’s claims related to the non-renewal of his contract dismissed on summary judgment; the teacher had posted materials deemed inappropriate on MySpace.


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CONTACT INFORMATION

Christopher J. Murphy, Esquire15th and Market StreetsCentre Square West, 38th FloorPhiladelphia, PA 19102Phone: 215.972.7140Fax: 215.972.2294Email: [email protected]


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Saul Ewing’s Office LocationsBaltimore, MarylandLockwood Place500 East Pratt Street, Suite 900Baltimore, MD 21202410.332.8600fax: 410.332.8862

Chesterbrook, Pennsylvania1200 Liberty Ridge Drive, Suite 200Wayne, PA 19087-5569610.251.5050fax: 610.651.5930

Harrisburg, PennsylvaniaPenn National Insurance TowerTwo North Second Street, 7th FloorHarrisburg, PA 17101-1604717.257.7500fax: 717.238.4622

Newark, New JerseyOne Riverfront PlazaNewark, NJ 07102973.286.6700 fax: 973.286.6800

New York, New York245 Park Avenue, 24th FloorNew York, NY 10167212.672.1995Fax: 212.372.8798

Philadelphia, PennsylvaniaCentre Square West1500 Market Street, 38th FloorPhiladelphia, PA 19102-2186215.972.7777fax: 215.972.7725

Princeton, New Jersey750 College Road EastPrinceton, NJ 08540609.452.3100fax: 609.452.3122

Wilmington, Delaware222 Delaware Avenue, Suite 1200Wilmington, DE 19801-1611302.421.6800fax: 302.421.6813

Washington, D.C.2600 Virginia Avenue, N.W.Suite 1000 | The WatergateWashington, D.C. 20037202.333.8800fax: 202.337.6065

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Risks Versus Opportunities of Online (On-the-Clock) Social Networking:

Before, During and After the Employment Relationship

Attorney Marcia Jackson

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Pre-Employment: Recruiting

• Post recruiting information, solicit applications, reach job-seekers around the world

• Enables potential applicants to gain a sense of the company and gauge whether they would be a good fit

• Lets potential applicants "hear" from current company employees

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Applicant Evaluation• Use of external blogs/social networks to "mine"

applicants• Industry-specific blogs, discussion forums, newsgroups,

listservs

• Use of external blogs/social networking sites to vet applicants

• Can give clues to an applicant’s analytical skills, communication skills, tact, and general maturity

• Can provide insight as to how others feel about the applicant

• Can help potentially avoid negligent hiring claim

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"Facebook IQ"Some recruiters look at Facebook pages to get an estimate of the individual’s IQ, personality traits and whether they would be a "good fit"

• Are they outgoing, as might be needed for a sales job?• Do they use creative phrases and correct grammar?• What books or activities do they reference (if any)?• Number of "friends" – social skills• Look at comments by "friends" for more insight

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Background Checks Online?One recruiter reported that "I’ve used MySpace to do some ‘reference checking’ to see if a candidate would be a good hire. One such candidate foolishly posted publicly that he had enlisted in the army but would try to ‘get out of it’ if he found a job. Needless to say, we didn’t bring him in for an interview."

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Pre-Employment – Potential Risks• Sites may allow potential employers to discover "protected"

information (e.g., age, marital status, familial status, sexual orientation, religious affiliation, political views, etc.)

• Possible Solution• If you choose to examine external social networks, have non-

decision maker conduct search and filter out information related to protected characteristics before passing along to hiring manager

• Have searches run by employer and not third party to avoid potential issues under the Fair Credit Reporting Act or state-specific statutes

• Carefully consider criteria in determining how and when to use online social networking sites in evaluating applicants

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During The Employment Relationship

To what extent should employers monitor employees’ use of social networks, and to the extent monitoring is conducted, what can/should employers do with information obtained from online social networks?

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Busted!• Nintendo employee Jennifer Zenner posted an "inexcusable

behavior" blog, listing insulting comments about her fellow female workers; not well received

• Jeffrey Spanierman: teacher who was too friendly with his students. He had a MySpace page which was considered too "peer-like" and the school board asked him to take it down. He did, but (proving their "peer-like" point) just put up a new one. Fired.

• University of New Mexico Hospital workers took cell phone pictures of patients and posted them on MySpace. Also fired.

• Swiss employee took day off work for migraines and said she couldn’t work in front of a computer – then was active on Facebook that day. Also fired.

• Youtube/Facebook searches: “Fired for Facebook”

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To What Extent Can (And Should) Employers Monitor This Conduct?

Limitations on monitoring off-duty conduct:

• Privacy issues• Laws restricting such monitoring• Common law protections against invasion of

privacy • Constitutional protections: First and Fourth

Amendment claims• Electronic Communications Privacy Act of 1986,

18 U.S.C. § 2511 et seq.

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Other Considerations• State laws

• At least five states (CA, CO, CT, NY, ND) have enacted "lifestyle" statutes prohibiting discrimination of lawful, off-duty conduct

• OSHA• False Claims Act• Privacy issues

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Potential Problems For Employers – During The Employment Relationship• Possible liability for torts committed by employee

including defamation of company employees, customers, or competitors, invasion of privacy, negligence, etc. ("cybersmearing")

• Employers have no duty to monitor comments made on electronic bulletin board, but do have a duty to stop co-employee harassment "in settings that are related to the workplace" if they know or have reason to know such harassment is taking place (Blakely v. Cont’l Airlines, Inc., 751 A.2d 538 (N.J. 2000))

• Employers may have defamation cause of action against former employees for information posted on blogs (Varian Med. Sys., Inc. v. Delfino, 6 Cal. Rptr. 3d 325 (Cal. Ct. App. 2003), rev’d on other grounds, 106 P.3d 958 (Cal. 2005))

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Potential Problems (Cont’d)• Possible liability for harassment or discrimination

claims• Possible intellectual property infringement• Possible dissemination of trade secrets or company

confidential or proprietary information

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Additional Potential Risks – Retaliation • Title VII• FLSA• NLRA• ADA• FMLA . . ..

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Non-Legal Risks

• Impact on Employee Morale• Adverse Publicity

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After The Employment Relationship • LinkedIn (or similar) “Review" or “Recommendation” Risks

• Some employers give a "review" of their employees, or “recommend” individuals on LinkedIn and other such sites

• If an employee is terminated and the good review stands on the website, this may be considered tantamount to giving a positive reference of a not-so-positive employee. Also could be used in a lawsuit to contradict a bad formal performance review

• As a general rule, only post/provide reviews to the same extent you would provide written references

• Even more of an area for concern since it is a public forum, andnot information provided solely to one other potential employer (and thus arguably privileged)

• The reverse is true should a bad "review" appear – may be used to support a claim of unlawful interference with future employment

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After The Employment Relationship Issues (Cont’d)

• Use in potential litigationDepositionsJury selectionMediation/settlement leverage

• Many as yet unanswered questions concerning discovery

Fisher & Phillips LLPATTORNEYS AT LAW

Solutions at Work®

Atlanta · Charlotte · Chicago · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las VegasLouisville · New Jersey · New Orleans · Orlando · Philadelphia · Portland ME · Portland OR · San Diego · San Francisco · Tampa

www.laborlawyers.com

Presented by:Wayne E. Pinkstone

Social Networking Websites:Employment Law Pitfalls

August 18, 2009


Solutions at Work®


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How should employers address the use of social networking websites by employees

Should an employer adopt a written policy regarding employee use of social networking websites?


Solutions at Work®


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To Ban? To Regulate?

It is lawful and appropriate for an employer to regulate or even prohibit its employees from engaging in online social networking and internet blogging activities while on Company time, property or business.


Solutions at Work®


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To Ban? To Regulate? It is also becoming increasingly common

for employers to try to limit employees from posting disparaging comments about the Company, or discussing the Company’s business, while blogging and social networking by adopting a policy making it clear that such conduct is prohibited and will not be tolerated.


Solutions at Work®


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To Ban? To Regulate? Contrary to popular belief, employees of

private employers do not have a constitutional “free speech” right to disparage their employers and co-workers and their employer’s customers, or to publicly discuss internal business matters, while blogging or social networking on the internet.


Solutions at Work®


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Best Practices Adopt a well-crafted “Blogging and Social

Networking” policy.

Notify employees of its existence and strict enforcement.

Publish, Distribute, Acknowledgement.


Solutions at Work®


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Best Practices Social networking activities should be subject to

Company’s policies and procedures on:

– protecting the confidentiality of Company information,

– safeguarding Company property, – prohibiting any type of employment

discrimination or harassment, and – governing use of the Company’s communication

and computer systems


Solutions at Work®


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Best Practices-Policy Employees are prohibited from disclosing

or discussing in online social networking and blogging activities:

– Company confidential or proprietary information

– information regarding the Company’s clients or business partners

– details of a particular client engagement


Solutions at Work®


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Best Practices-Policy

Employees are prohibited from using the name, trademarks, logos, other identifying marks or copyright-protected material of the Company or its clients.


Solutions at Work®


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Best Practices - Policy Employees engaging in online social

networking and blogging activities are expected to remain respectful of the Company, and its employees, its products and services, its clients, its partners, its affiliates, its vendors and suppliers, and its competitors (and their products and services).


Solutions at Work®


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Best Practices - Policy Employees are prohibited from posting

any material that is obscene, vulgar, defamatory, threatening, discriminatory, harassing, abusive, hateful or embarrassing to another person or entity, and should not engage in activity that reflects or may reflect negatively on the Company, its affiliates, employees or clients.


Solutions at Work®


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Best Practices - Policy Harassing or discriminatory comments

may be deemed inappropriate even if the Company name is not mentioned.

If such communications in any way adversely affect work relationships, the employee may be subject to discipline and termination under the Company’s Anti-Harassment Policy.


Solutions at Work®


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Best Practices - Policy Employees must make it clear in any

online social networking and blogging activities that the views and opinions they express about work-related matters are their own, have not been reviewed or approved by their employer, and do not necessarily represent the views and opinions of their employer.


Solutions at Work®


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Best Practices - Policy

This policy is not meant to restrict an employee’s use of Social Networking Sites and/or blogs for purely personal reasons where the employee does not identify himself or herself as an employee of the Company.


Solutions at Work®


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Best Practices - Policy However, any employee who identifies

himself or herself as a Company employee on his or her personal Social Networking Site profile is presenting himself or herself as a representative of the Company and is expected to ensure that the content of his or her page complies with professional standards of conduct.


Solutions at Work®


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Best Practices - Policy

Employees are strictly prohibited from listing their Company e-mail address on their profile unless the Social Networking Site or blog is used purely for Company business or professional purposes.


Solutions at Work®


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Best Practices – Policy Employees should expect that any

information created, transmitted, downloaded, exchanged or discussed on Social Networking Sites and/or blogs may be accessed by the Company at any time without prior notice.


Solutions at Work®


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Privacy Issues

Employers and employees need to be aware of potential privacy issues with the use of social networking websites.

Consider these limits on what employeesmay do, to minimize risks of privacy suits.


Solutions at Work®


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Privacy Issues

– Reduce or eliminate any expectation of privacy by the employees in the company computer and email system and explain what employees should and should not do.

– Employees should expect that information exchanged on social networking sites and/or blogs may be accessed by the company at any time without prior notice.


Solutions at Work®


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Privacy Issues

– Prohibit use of company trademarks, logos, and copyrighted materials, without specific authorization.

– Prohibit disclosure of company materials to competitors or others outside your company.

– Train employees in the content and applications of your rules.


Solutions at Work®


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Privacy Issues

– Monitor compliance with the rules.

– Train employees in the content and applications of your rules.

– Be consistent in enforcing them.


Solutions at Work®


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Privacy Issues Limits on Employer Representatives:

– Managers and supervisors are the face of the company.

– What they say on social networking websites is a reflection of the company.

– Do not disclose private information about employees on social networking sites.


Solutions at Work®


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Privacy Issues Limits on Employer Representatives:

– Let managers and supervisors know that improper disclosure of private information can subject both them and the company to liability for invasion of privacy.

– Adequately train supervisors and other management personnel regarding the policies and their enforcement to ensure consistency.


Solutions at Work®


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Privacy Issues Caution managers on pitfalls of becoming “friends” with

employees on social networking sites

– Don’t reveal anything you wouldn’t say or post in the break room

– Diligently use privacy controls to manage flow of information

Could become part of harassment or discrimination claim even though “personal” page


Solutions at Work®


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Solutions at Work®

Presented by:

Wayne E. Pinkstone201 King of Prussia Rd., Suite 650

Radnor, Pennsylvania 19063Phone: (610) 230-2136

Email: [email protected]

Atlanta · Charlotte · Chicago · Columbia · Dallas · Denver · Fort Lauderdale · Houston · Irvine · Kansas City · Las VegasLouisville · New Jersey · New Orleans · Orlando · Philadelphia · Portland ME · Portland OR · San Diego · San Francisco · Tampa

www.laborlawyers.com

Social Networking Websites: Employment Law...

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