2013 conference · 2018-04-14 · social networking websites linkedin is a free site, primarily...
TRANSCRIPT
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2013 Conference
Presented by: ALDEN J. PARKER, ESQ.
August 22, 2013
“To Tweet or Not to Tweet”
What is Social Networking?
• Text
• Social networking is a phenomena defined by linking people to each other by Internet usage
• Social networking services focus on building online communities of people who share an experience, interest, or activity
• Most of these services are web based and provide a variety of ways for users to interact, such as blog posts, email, and instant messaging
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Most Common/PopularSocial Networking Websites
LinkedIn is a free site, primarily designed and used for professional networking and business-oriented endeavors. Launched in 2003, the site enables users to join networking groups and add other users as “connections” (i.e., people they know or trust in a business setting.) Currently, all Fortune 500 companies have executives who are LinkedIn members.
42,744,438Monthly Visitors
FaceBook is a free, international social networking site which launched in 2004. FaceBook allows anyone with a valid email address to sign up and access the site. FaceBook features personalized profiles, current status updates, email, video and image sharing, group pages, instant messaging, and notes, which are similar to blogs.
1,191,373,339Monthly Visitors
Launched in 2003, MySpace is a free social networking site with international use and popularity. Although marketed as a “Place for Friends,” the site features profiles of musical artists, companies, businesses, and other groups in addition to personal profiles. Users can write blogs, post photos, videos, and music, message other users, and join groups.
810,153,536Monthly Visitors
Launched in 2006, Twitter is a free micro-blogging site that enables users to post “tweets,” which are short messages with a maximum of 140 characters. Tweets provide succinct updates or web-related links and approximately three-million tweets are sent per day. Users have the option of making tweets public or only viewable to friends.
54,218,731Monthly Visitors
“How are employer’s using social networking sites to their advantage?”
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June 12, 2009
Dell Sells $3 MillionThrough Twitter
“Dell said late Thursday that it sold more than $3 million in PCs and accessories through Twitter promotions and other activity on the microblogging service.
The Dell outlet, which sells returned or refurbished computers at a discount, began
experimenting with Twitter in 2007. . . . DellOutlet now has more than 620,000 followers, and representatives use it to
advertise Twitter-only deals. . . .”
October 9, 2008
Reconnecting with an old client yields a $1M contract
Darrel Rhea was a LinkedIn user who wasn’t sure how to leverage his professional network on LinkedIn effectively. A quick 10 minutes that he spent importing his Outlook contacts to LinkedIn yielded a chance encounter with a former client. One thing led to the other and before he knew it he had signed off on a $1M project with his client.
September 17, 2008
Fielding international PR opportunities
Parsing the significance of an incoming business inquiry can be tough. In the case of Jeffrey Taylor, he passed off a lead — who found him on LinkedIn — to the patent department, telling them, “don’t spend all that much time with this person — this is not a billable hour.” When the patent rep returned two hours later, he let Jeffrey know, “They just gave us $250,000 worth of patent work!” Ostensibly the contract covered the hours required for the phone call.
EMPLOYER BENEFITS OFSOCIAL NETWORKING SITES
• Low cost (or no cost) job advertising• Developing and promoting a positive employment brand (make
your business a place where everybody wants to work)• Finding and recruiting appropriately skilled and experienced
employees• Screening job applicants• Monitoring employee conduct• Additional benefits – not employment related – also exist!!
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“As an employer, may I legally use social networking sites to find and recruit employees
and, if so, are there any risks?”
SOCIAL NETWORKING SITESARE AN EXCELLENT RESOURCE FOR
RECRUITING AND FINDING EMPLOYEES• Social networks make it easy to build relationships with
potential candidates and to create an open and comfortable channel for discussion
• Through social networks employers can easily find relevant candidates for a position by searching for people with the skills the employer is looking for
• When recruiting in social networks an employer reaps the added benefit of spreading brand awareness and increasing the desire of others to work at the company
• When consistently recruiting in social networks the employer regularly expands its personal network so it can reach a much larger number of potential candidates
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POTENTIAL RISKSDISPARATE IMPACT DISCRIMINATION CLAIMS
• Even where an employer is not motivated by discriminatory intent, employers are prohibited from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class According to the latest data collected from Quantcast, users of
social networking sites are primarily Caucasians age 20-40 (on LinkedIn, only 4% of users are African-American, 8% are Asian, and just 2% are Hispanic)
Recruiting on social networking can result in disparate impact on groups without a large social networking presence
A PICTURE I$ WORTHA THOU$AND WORD$ AND MORE
And if you are not careful, a picture may
be worth a claim of employment
discrimination.
Take a look at the following slide and photographs which have been uploaded to, and freely obtained from various FaceBook, MySpace, and blog sites.
What information can you gain from these photos which would otherwise be “off-limits” when making employment decisions?
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POTENTIAL RISKSDISCRIMINATION CLAIMS
• Federal and California state law prohibits employers from discriminating against candidates and employees based on the existence of a protected characteristic
• Moreover, federal and California state law prohibits employers from asking questions during the recruitment and interview process which could reveal or lead to the discovery of an existed protected classification
• Social networking sites, including profile information and posted photography, simplify an employer’s ability to obtain information they would otherwise not have or ask for
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POTENTIAL RISKSWHAT CHARACTERISTICS ARE PROTECTED?
Age (40 years or older) Association/affiliation (including political) Disability/medical condition (physical or mental) Marital status National origin/ancestry (including language use
restrictions)
Race/color Religion Retaliation for engaging in protected activity or
requesting a protected leave of absence Sex/gender (including gender identity) Sexual orientation Veteran status
Social Media and Personal Passwords (AB 1844)
• AB 1844 prohibits employers from:• (1) requiring or requesting employees or job
applicants to provide user names or passwords for personal social media accounts; and
• (2) requesting an employee or applicant to divulge personal social media.
• There are limited exceptions, including an exception relating to employer investigations.
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“As an employer, how should I
respond to requests for LinkedIn
recommendations or other invitations to comment or blog on an employee’s
professional history?”
The California Supreme Court has ruled a former employer providing a recommendation owes a duty to protect employers and third parities and cannot misrepresent the qualifications and character of an ex-employee where there is a substantial risk of physical injury.
(Randi W. v. Muroc Jt. Unified School District (1997) 14 Cal.4th 1066.)
The law arguably places employers who give recommendations in a Catch-22 – if an employer fails to disclose an accusation because of insufficient credible evidence, then the employer risks being sued by third party victims; however, if the employer does mention an accusation, the ex-employee
can arguably sue for defamation.
“It may look harmless, but it's a legal land mine for employers.”
The National Law JournalJuly 6, 2009
RECOMMENDATIONS
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EMPLOYEE RECOMMENDATIONS AND REFERENCES
• Despite an apparent value to employee recommendations and references, it is unwise to provide a recommendation on LinkedIn or similar sites
• If a recommended employee is later terminated, the employee may try to use the recommendation as evidence of pretext in a later discrimination suit
• Limit recommendation and reference requests to the basics, such as start and stop date and job titles
• Consider routing these requests to a central source and clearly document who is requesting the information, for what purpose, and what information, exactly, was provided
• Employers policies regarding not providing references should be distributed to all employees and should include language specific to prohibiting references or recommendation on social networking sites
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“As an employer, may I legally use the Internet and social networking
sites to screen employees and
conduct background checks and, if so,
are there any risks?”
SCREENING AND BACKGROUND CHECKS
• Using the Internet and social networking sites to research and screen potential employees can be a quick and cost effective way to make sure an employer is making a wise hiring decision
• For example, perusing posted items such as videos, pictures, and blogs provides insight into an applicant’s analytical abilities, writing skills, communication skills, judgment, maturity, and reputation
• An employer can use this information to compare candidates and determine which candidates fit best with the business and possess the necessary skill sets
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SCREENING AND BACKGROUND CHECKS
CareerBuilder.com reports that a survey of 3100 employers revealed that 22% of hiring managers said they use the Internet and social networking sites to research job candidates
An additional 9% said they don't currently use the Internet and social networking sites to screen potential employees, but plan to start
SCREENING AND BACKGROUND CHECKS
• Of those hiring managers who have screened job candidates via the Internet and social networking profiles, one-third reported they found content which caused them to dismiss the candidate from consideration; top areas for concern among these hiring managers included:– 41% of candidates posted information about them drinking or using drugs– 40% of candidates posted provocative or inappropriate photographs or information
(potential sexual harassment or gender discrimination claims)– 29% of candidates had poor communication skills– 28% of candidates bad-mouthed their previous company or fellow employee– 27% of candidates lied about qualifications– 22% of candidates used discriminatory remarks related to race, gender, religion, etc.– 21% of candidates were linked to criminal behavior– 19% of candidates shared confidential information from previous employers
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SCREENING AND BACKGROUND CHECKS
• Twenty-four percent of hiring managers who researched job candidates via the Internet and social networking sites said they found content that helped to solidify their decision to hire the candidate; top factors that influenced their hiring decision included:– 48% of candidates background supported their qualifications for the job – 43% of candidates had great communication skills– 40% of candidates was a good fit for the company's culture– 36% of candidates site conveyed a professional image– 31% of candidates had great references posted about them by others– 30% of candidates showed a wide range of interests– 29% of candidates received awards and accolades– 24% of candidates profile was creative
POTENTIAL RISKSRELIABILITY
• Employers should be cautious about the reliability of the information they obtain from the Internet and social networking sites
• Searches can uncover information about someone with an identical name as an applicant or employee
• Information that appears about an applicant or employee may not have been posted by the applicant or employee, particularly derogatory or defamatory information which may have been posted by unfriendly third-parties with ulterior motives
• The simplicity of the Internet and social networking sites makes it very easy for a determined individual to devastate the reputation of another
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POTENTIAL RISKSINVASION OF PRIVACY CLAIMS
• Though one might argue members of social networking sites should have no expectation of privacy (since they are posting information on the world wide web) some applicants or employees might argue an employer overstepped its legal bounds by using profile data in employment decisions
• Various federal and California state laws exist to protect an individual’s privacy (including the Fair Credit Reporting Act (FCRA) and the California Investigative Consumer Reporting Agencies Act (ICRAA)) and require specific notices be provided to applicants and employees before any type of third-party background check is completed
POTENTIAL RISKSINVASION OF PRIVACY CLAIMS
• Generally, under federal and California state law, employers may utilize social networking sites to conduct background checks on employees if:– The employer conducts the background check itself– The site is readily accessible to the public– The employer does not need to create a false alias to
access the site– The employer does not have to provide any false
information to gain access to the site– The employer does not use the information learned
from the site in a discriminatory manner or otherwise prohibited by law
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INVASION OF PRIVACYPietrylo v. Hillstone Restaurant Group
• In Pietrylo, 2 employees created a MySpace page they used to air grievances against their employer in a password protected environment and invited other employees (but not managers) to join
• A manager learned of the site and its sometimes profane content when one of the invited employees showed him a posting from it
• The manager told another manager and then the two of them twice requested the employee's log-in ID and password to the site
• Eventually the employee gave them the information and the managers logged into the site a few times before firing the site's creators for damaging employee morale and for violating the restaurant's "core values"
INVASION OF PRIVACYPietrylo v. Hillstone Restaurant Group
The central issue at trial was whether the employee was coerced into giving the managers the log-in ID and password information to permit them to enter the site
The employee testified she felt pressure to give the manager her password and she felt she would have gotten into trouble had she not done so
The jury awarded the maximum back pay allowed to both plaintiffs, punitive damages equivalent to four times the compensatory damages, and attorneys’ fees
As a result of the employee’s testimony, the trial court found the jury had reasonably concluded the managers had not been authorized to enter the site and refused to toss out their verdict
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CLAIMS OF VIOLATIONS OF PRIVACY, FREEDOM OF SPEECH, AND NATIONAL LABOR RELATIONS
Employees and applicants alike may challenge an employer’s search of a blog or social networking site as an invasion of privacy and an illegal search under the Fourth Amendment
If the claimant can show the employer used questionable tactics to gain access to a site the employee or applicant attempted to keep private, the severity of a claim is enhanced
Applicants or employees may also defend their social networking information through a First Amendment freedom of speech claim or National Labor Relations Act claim
FREEDOM OF SPEECHSnyder v. Millersville University
In the case of Snyder v. Millersville University, student teacher Snyder had a MySpace profile which included a photo of her captioned “Drunken Pirate,” in which she wore a pirate’s hat, was drinking an alcoholic beverage, and giving the peace sign; the page also contained a post in which Snyder implied the teacher who was supervising her, Nicole Reinking, was the reason Snyder would not apply for a job at the school after completing the program
Unfortunately for Snyder, a co-worker viewed the picture and the post and gave a copy of both to Reinking who promptly complained to her supervisor who, in turn, brought the MySpace content to the attention of the school superintendent
The superintendent suspended Snyder from the student teacher program and in her final performance evaluation Snyder received an “unsatisfactory” rating for “professionalism”
That rating disqualified Snyder from earning a teaching certificate Snyder sued the school alleging it had violated her First Amendment rights by denying the
teaching certificate based largely on the MySpace content The court ruled Snyder had no right to speech that damaged her employer’s reputation
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POTENTIAL RISKSTERMS OF SERVICE VIOLATIONS
Most social networking sites have terms of service posted on their pages that generally prohibit use of their content for “commercial purposes”
Violation of the terms of service would not automatically create a cause of action in and of itself; however, it may be a way for a plaintiff to argue there is an expectation of privacy in using the site and everyone who signs up to use the site is agreeing to abide by those terms
“Should I be concerned the growing popularity of social networking may be
negatively impacting employee productivity?”
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EMPLOYEE PRODUCTIVITYNucleus Research July 2009 Survey
237 Randomly Selected Office Workers Employers are losing 1.5 workers per 100 in
employee productivity to social networking Nearly two-thirds of those who have Internet access
visit social networking sites during working hours Those who visit these sites at work do so for an
average of 15 minutes each day Of those who visit social networking sites at work,
87% could not define a clear business reason for it Of those who visit social networking sites at work,
6% never use it anywhere else, meaning one in every 33 workers do all of their social networking during work hours
“Can I legally monitor my employees’ usage of the Internet and
social networking sites and, if so, are there
risks?”
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MONITORING EMPLOYEE SOCIAL NETWORKING
Employers have the right to monitor employees’ social networking activity if it occurs during work hours and as it relates to the employer’s business Employers can reduce the potential of claims for invasion of privacy and discrimination by:
• Ensuring employees are aware their computer usage may be monitored (policy, policy, policy)
• Monitor everyone – and equally• Use reliable monitoring technique
“Can I discipline or terminate an
employee based on information read
on a blog or obtained from a personal social networking site
and, if so, what are the risks?”
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DISCIPLINING EMPLOYEESSimonetti v. Delta Airlines
Ellen Simonetti, a flight attendant for Delta Airlines, initiated a blog titled "Diary of a Flight Attendant“ and posted photographs of herself posing suggestively on an airplane in her Delta Airlines uniform
Delta subsequently learned of the web site and discharged Simonetti On September 7, 2005, Simonetti filed a complaint alleging claims under Title VII for gender
discrimination and retaliation, and claiming interference of her rights to organize and bargain collectively in violation of the Railway Labor Act
Specifically, Simonetti alleged that male employees who posted pictures of themselves on web sites while wearing Delta pilot, flight attendant, and mechanic uniforms were not similarly discharged even though Delta was aware of these postings
Simonetti also contended that Delta terminated her employment because she had participated in labor-organizing campaigns
Although the case was stayed a few weeks later when Delta Airlines declared bankruptcy, Simonetti's claims exemplify the potential issues employers may face when disciplining employees who blog
ON-DUTY CONDUCTImagine you are the manager of a Burger King restaurant and you have just discovered how to use MySpace. You decide to check the profiles of the employees who work the midnight shift. While perusing one employee's profile, you notice a link to a video.As you click on the link, you are immediately faced with the employee, possibly in his birthday suit, taking a bath in one of the restaurant's utility sinks.You instantly imagine every horrible situation that may result from this incident: health violations, customers getting sick, bad public relations.WHAT WOULD YOU DO?That situation is no fabrication. It actually occurred at a Burger King in Xenia, Ohio.
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WHAT ABOUT OFF-DUTY CONDUCT?
EMPLOYER CONTROL An employer’s ability to discipline or terminate an
employee for their involvement in blogging-related activities depends upon the circumstances surrounding the conduct in question
While it is probably permissible for a private employer to discipline an employee who breaches a confidentiality agreement, violates a company policy, harasses a fellow employee, or carries out their blogging during business hours, there are legal and practical limits to doing so
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EMPLOYER CONTROL Employers should carefully consider how they react to a blogging
issue as the fallout from the company’s response could include loss of employee morale, negative media coverage and the costs of defending employee lawsuits
The law is still trying to catch up to the technological realities that employers face today; no statute or case conclusively outlines an employer’s rights and responsibilities in this regard
Before taking any disciplinary action against employee-bloggers, employers should always seek legal advice
WORKPLACE TWITTERWHAT WOULD YOU DO?
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WORKPLACE TWITTERWHAT WOULD YOU DO?
WORKPLACE TWITTERWHAT WOULD YOU DO?
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DISCIPLINING EMPLOYEES
Microsoft employee but avid Mac user, Michael Hanscom, posted a photo on his personal Blog of Apple computers being offloaded at a Microsoft loading dock – the action cost him his job and garnered national attention
Matthew Brown, a Starbucks supervisor in Toronto, sounded off about his boss on his personal Blog, from his personal computer, when a manager refused to let him go home sick – he was terminated shortly thereafter
Friendster, the website known for breaking new ground in social networking, fired Joyce Park, a developer hired to enhance their systems and who had described their old system as “pokey” on a personal Weblog
“Can my company be held liable for information blogged or posted by an
employee on a social networking site?”
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EMPLOYER LIABILITYBlakey v. Continental Airlines
Continental Airlines provided pilots with a software package which allowed them to communicate with each other through posts, similar to blogs
When a number of male pilots posted inappropriate comments, a female pilot filed suit, claiming harassment and discrimination
The airline contended that, as it did not sponsor the site, it was not libel for the comments
The court declined to adopt the airline's sponsorship test, and instead held that if the airline benefited from the site, it could be vicariously liable for the comments
EMPLOYER LIABILITYAn employer can face potential liability from employee use of social networking sites or blogging in a variety of ways:
Slander, defamation, and libel. An employer could be held liable if an employee posts negative statements about another person or a competitor on a website or blog
Trade secrets and intellectual property infringement. The disclosure of certain trade secrets can destroy the "confidential" status of the information, and the disclosure of a third party's confidential information could lead to an action for trade secret misappropriation or intellectual property infringement
Trade libel. Misstatements or misrepresentations about a competitor could lead to claims of trade libel
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EMPLOYER LIABILITYAn employer can face potential liability from employee
use of social networking sites or blogging in a variety of ways:
Securities fraud and gun-jumping. Publicly traded companies can face sanctions for securities fraud if material misrepresentations are posted. Any postings plugging the registered company could violate federal securities law
Employment actions. Employees may try to sue you for wrongful termination or discrimination if their employment is terminated because of postings that reference personal aspects of their life (e.g., marital status or sexual orientation)
Harassment. Language that is harassing, discriminatory, threatening, or derogatory could prompt a lawsuit
EMPLOYER LIABILITYYath v. Fairview Clinics
In the case of Yath v. Fairview Clinics, et al., an employee of a medical clinic read private medical records about an acquaintance and learned the acquaintance had an STD and an extra-marital affair
The employee then shared this information with others, and eventually, the information was posted on Myspace.com
Once the acquaintance learned of the breach of her medical information, she sued a number of defendants, including the employee’s employer, on a number of legal theories, including invasion of privacy
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EMPLOYER LIABILITYWhat protected Fairview from liability?
The court held Fairview not liable because: Fairview did now allow employee access to certain Internet
and social networking websites; Fairview had implemented appropriate policies to protect
and prohibit the dissemination of confidential information The information was not posted by the Fairview employee,
but rather another who did not work for Fairview and had only learned of the information from the Fairview employee
Had there been evidence the Fairview employee was directly responsible for posting the confidential information or had Fairview permitted access to website during work hours, the Court’s stated its decision would have been different
EMPLOYER LIABILITYDelfino v. Agilent Technologies
An employee of Agilent Technologies used his computer at work and the moniker “crack smoking jesus,” to send a number of e-mail messages and make postings to a Yahoo! group threatening plaintiffs with great physical harm
The FBI traced “crack smoking jesus” to Agilent’s IP address; Agilent’s internal security then traced the activity to employee Moore
After an investigation, Agilent fired Moore, but plaintiffs filed suit against Agilent for, among other things, intentional infliction of emotional distress, for allowing Moore to use the system in the manner he had
At the trial court level, Agilent moved for summary judgment, on grounds that the Communications Decency Act (CDA) shielded it from liability; the trial court granted the motion, a California Court of Appeal affirmed
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EMPLOYER LIABILITYWhat protected Agilent from liability?
To evaluate Agilent’s claim of immunity under the CDA, the court examined the three (3) relevant elements of the CDA and held:
Agilent was a provider versus a user of an interactive computer service;
The cause of action treated Agilent as the publisher versus the speaker of the threatening language; and
The claim lacked any allegation or evidence that anyone other than employee Moore was responsible for generating the offending content
“Do social networking sites pose additional risks to my company?”
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Social Media as a Concerted Activity Under the National Labor Relations Act
NLRB may be beginning to frame both sides of the social media issue by illustrating when and under what circumstances an employee who is merely griping on Facebook may be disciplined or terminated. Three recent NLRB advice memoranda reaffirm that employees who engage in protected concerted activity online are protected against employer discipline just like everyone else. However, the Board has now found that employees who merely complain or gripe about their employer online can be subject to discipline, up to and including termination. Ultimately, where the line between “protected concerted activity” and mere gripes will be drawn by the NLRB is anyone’s guess.
Social Media Use Protected by the NLRA?
Here is the NLRB’s current “Maginot Line”:• An individual employee’s conduct is concerted when he or she acts
“with or on the authority of other employees,” when the individual activity seeks to initiate, induce, or prepare for group action, or when the employee brings “truly group complaints to the attention of management.”
• Such activity is concerted even if it involves only a speaker and a listener, “‘for such activity is an indispensable preliminary step to employee self-organization.’” On the other hand, comments made “solely by and on behalf of the employee himself” are not concerted. Comments must look toward group action; “mere griping” is not protected.”
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Social Media as the new frontier.These standards to three recent NLRB opinions:• JT’s Porch Saloon: Found it ok to terminate a bartender after
posting comments in a Facebook conversation with his sister expressing his hope that his employer's "redneck" customers would "choke on glass as they drove home drunk." Notably, none of his co-workers participated in the Facebook conversation. JT's Porch Saloon,Case No. 13-CA-46689 (July 7, 2011).
• Wal-Mart: An employee vented about his own frustrations by insulting his Assistant Manager through his Facebook page. The employee referred to his Assistant Manager as a "puta" and said her comments regarding his performance were "retarded." Feeling emboldened by his computerized echo chamber, the employee signed off by stating that Wal-Mart could "kiss [his] royal white ass." The Board found that while the Wal-Mart co-workers responded to his posts, they were expressions of individual support and not protected concerted activity. Wal-Mart, Case No. 17-CA-25030 (July 19, 2011).
Social Media protected by the NLRA?
• Martin House: An employee at a homeless care facility was terminated after posting inappropriate comments about residents.
• While clocked in for work, the employee posted from her smartphone (or not-so-smart phone) that the institution was "spooky" and how the clients would "just pop meds." In this instance no co-workers were part of the Facebook conversation. The Board found this was not concerted activity. Martin House, Case No. 34-CA-12950 (July 19, 2011)
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NLRB’s Take on Workplace Photos and Videos
• Giant Food LLC: Company’s social media policy prohibited employees from taking pictures or videos of the supermarket’s premises. NLRB held that the policy was too broad and therefore violated Section 7 of the NLRB by infringing on the employees right to collective action.
“As an employer, what is the best way
to protect myself and my company from
employee social networking and
blogging and related claims?”
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ADAPTING TO SOCIAL NETWORKING MEDIA
The rapid growth of social networking and blogging means employers should revisit their electronic communications policies and evaluate whether they are sufficient to cover this new form of media (because social networking sites present new issues for the workplace, it will not likely be sufficient to rely on an old e-mail policy in most cases)
An employer’s approach to blogging and social networking will depend on the benefits, risks, and needs of the specific company (while some businesses will ban access to all social networking sites, others may find that it is advantageous to allow employees access to certain sites or even to create a company webpage on a social networking site)
RECOMMENDATIONSClearly Define Your Business’s Policies on Social
Networking Sites in the Workplace Employers should first decide whether or not they support the
use of social networking and blog sites in the work setting
Employers should be aware that banning the use of such sites may result in adverse publicity for the business and may discourage and upset employees
Additionally, employers may miss out on invaluable and cost efficient networking, marketing, recruiting, and screening opportunities
If an employer supports the use of these sites, the employer should create clear policies regulating use, and ensure that employees understand and agree to these policies in writing
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RECOMMENDATIONSConstruct Clear Policies on
Employee and Applicant Screening Processes In order to guard against discrimination suits, employers
should designate a neutral party who is not an employment decision-maker to research the applicant or employee’s social networking profiles and blogs
Employers should instruct that neutral party to withhold any and all information pertaining to an individual’s protected class or characteristics when reporting back to the decision-maker
The neutral party should not unnecessarily delve into research that would focus on any of these protected traits
RECOMMENDATIONSConstruct Clear Policies on Employee Use
Social media policies should be developed along the same guidelines as electronic communication policies and incorporated into existing confidentiality and technology policies whenever possible
The policy should indicate that the policy does not apply to collective activity under the NLRA.
The policy should be disbursed in a manner that will provide confirmation that the employees have read and understood the policy
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RECOMMENDATIONSWhat Should Be Included In the Policy
Include a clear statement of your expectations and rules for Internet use (whether it occurs off-duty or at work)
Include a clear statement of what is permitted only with prior approval from the company, such as blogs or postings that imply employer sponsorship or support, use any logos, trademarks, or service marks, or use company time, facilities, supplies, or resources
Identify required disclosures, disclaimers, and endorsements , if applicable
Describe inappropriate content, with examples as necessary (clear direction will certainly help you allow employees to engage in social networking or blogging while retaining the ability to properly monitor and control their computer use)
RECOMMENDATIONSWhat Should Be Included In the Policy
(Include a specific statement of what is prohibited.)
Disclosing confidential or proprietary information
Disclosing the name of the business in personal websites or purely social networking sites except professional networking sites (e.g., LinkedIn)
Revealing the name of the company on a site with sexual or violent content
Using the company's intellectual property (e.g., trademarks)
Infringing on the intellectual property rights of others
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RECOMMENDATIONSWhat Should Be Included In the Policy(Include a specific statement of what is
prohibited.) Making statements adversely affecting the company's interests or reputation
Criticizing customers or other important business partners
Making statements supporting competitors
Issuing defamatory, harassing, or disparaging language
Issuing content that violates the law (e.g., obscenity)
Writing or commenting on content that would constitute a violation of any other policies, rules, standards of conduct, or requirements applicable to employees
BOTTOM LINE Whether your company uses social
networking sites or not, you need to be aware that your employees are unquestionably using them
Reexamine your electronic communications policies to protect your confidential information, reputation, and trade secrets and ensure that you have addressed social networking sites and blogs
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