IT Managers’ Conference

1. IT Managers’ Conference Social Media Policies:“My Employees Can’t Say That on Facebook . . . Can They?” September 20, 2013

2. “Tweet-y Bird & Friends.” What Employers Need to Know About Social Media.

3. Social Media

4. Social Media Legal Issues • Business & legal risks from employee use of social media • Legal risks from employer response to employee use of social media

5. Social Media Risks from Employee Use • Unlawful harassment • Defamation/business disparagement • Disclosure of confidential information • Violation of non-solicitation covenant • Securities violations

6. PhoneDog v. Kravitz • Noah Kravitz worked at PhoneDog from 2006-2010, had 17,000 Twitter followers on account @PhoneDog_Noah • PhoneDog is a website that reviews mobile gadgets • Kravitz left PhoneDog, switched name of account & began sharing things he wrote for other tech sites • PhoneDog sued, claiming it had helped establish Kravitz’ online identity on Twitter and elsewhere • PhoneDog claims Kravitz’ Twitter followers are worth about $42,500/mo • Federal court allowed case to proceed

7. Think BEFORE you post! • Twitter post • “I find it ironic that Detroit is known as the motorcity and yet no one here knows how to f---ing drive.” • Chrysler employee tweet • From official @ChryslerMotors account • Yeah, he was fired.

8. Social Media Risks from Employer Response to Employee Use • Retaliation • Discrimination • Whistleblower • Protected Concerted Activity • Invasion of Privacy

9. Politics is Dirty! • Sheriff fired deputy and five other employees for supporting his rival in a 2009 election • The deputy clicked the Facebook thumbs-up icon to follow the page for the sheriff’s political opponent • Sheriff was re-elected and fired the employees • Deputy filed suit claiming a “like” should be protected by his First Amendment right to free speech • Who won?

10. Politics is Dirty! • Federal district court judge ruled it was not protected speech • “Liking a Facebook page is insufficient speech to merit constitutional protection” because it doesn’t “involve actual statements” • Ruling is on appeal

11. Federal Law • The Stored Communications Act (SCA) 1986

12. SCA • Designed to thwart hackers by regulating “access to stored wire and electronic communications and transactional records” • SCA makes it a crime to access, without authorization, an electronic communication while it is still in electronic storage.

13. SCA Electronic communication services • “any service which provides to users thereof the ability to send or receive wire or electronic communications” Remote computing services • “the provision to the public of computer storage or processing services by means of an electronic communications system”

14. We’re All Friends Here! • Manager of a Houston’s Restaurant discovered EEs created a closed MySpace forum complaining about the restaurant. • Manager allegedly coerced a hostess to give him her password to the account. • Manager reviewed the site & fired two EEs who created the site. • EEs sued.

15. We’re All Friends Here! • MySpace group was maintained by EE during non-work hours. • Access required invitation from creators and password. • Group was labeled as private and described as forum where EEs could vent on “crap/drama/and gossip” related to workplace. • Management was not invited.

16. We’re All Friends Here! • Court upheld jury verdict that restaurant violated SCA. • Court found company “knowingly, intentionally, or purposefully” accessed an otherwise private chat room without authorization in violation of the SCA.

17. “While you were out . . . .” • Interior design firm hired Maremont as its Director of Marketing, PR, and E-commerce • Maremont opened Facebook and Twitter accounts to market employer

18. “While you were out . . . .” • Maremont also opened personal Facebook and Twitter accounts, not for employer • Maremont stored passwords for her personal accounts on employer’s server, using employer computer • Folder Maremont used was locked and she did not give anyone authority to access her personal accounts

19. “While you were out . . . .” • Maremont involved in auto accident, out of work for several weeks • While Maremont in hospital, employer posted entries on her personal Facebook & Twitter accounts promoting the business • Maremont did not authorize employer use of her personal accounts

20. “While you were out . . . .” • Maremont sued employer for violation of SCA • Employer asked the court to dismiss Maremont’s SCA claim • Court denied employer’s motion to dismiss SCA claim

21. Remember! General Rule: • If EE’s personal e-mail saved to ER server or computer, ER can review & use it under broad computer use policy, BUT . . . • Accessing e-mail on EE personal account b/c ER has access to password, etc. w/o EE consent = trouble

22. Have a written internet usage policy that regulates employee use of social media EEs should sign policy Policy should integrate other policies governing employee conduct, e.g.: Discrimination Retaliation Confidentiality No reasonable expectation of privacy Employer should decide proper balance between employee use of social media and rules governing use Prohibiting all use of social media v. employer time & effort required to enforce Social Media Policy

23. “The views expressed on this post are mine and do not necessarily reflect the views of [Company name].” Speak in first person on social sites (e.g., I, me, etc.) Use common sense Don’t be stupid! Social Media Policy

24. NLRB to the Rescue! • NLRB published a memo on May 30, 2012 with a social media that it concluded is lawful under the NLRA • If you’re nice to me and pay attention to my presentation today, I’ll give you a copy of the NLRB-approved social media of your very own!

25. “Employees Have Rights?”

26. National Labor Relations Act

27. Employee Rights Under the National Labor Relations Act • On hold • Currently in litigation • Already applies to Federal Contractors & subs • Copies of notice available at www.nlrb.gov • Must post 11 x 17 inch size • Must also post on intranet or internet if personnel rules & policies posted there

29. Employee Rights Under the National Labor Relations Act Applies to • Private-sector employers • Retail: >= $500K gross annual business • Nonretail: >= $50K annual inflow or outflow of goods or services • Industry-specific standards • Federal contractors • Already subject to DOL posting Does NOT apply to • Public-sector employers • Agricultural & domestic workers • Independent contractors & supervisors • Workers employed by parent or spouse • Air and rail employees covered by Railway Labor Act

30. Employee Rights Under the National Labor Relations Act • Failure to comply may be an unfair labor practice (ULP)

31. Protected Concerted Activity“Section 7 Rights”

32. Definition When two or more employees take action for their mutual aid or protection regarding terms and conditions of employment; or 1 employee acting on authority of others, bringing group complaints to employer’s attention, trying to induce group action, or seeking to prepare for group action Examples: 2 or more employees addressing their employer about improving their pay 2 or more employees discussing work-related issues beyond pay, such as safety concerns 1 employee speaking to an employer on behalf of one or more co-workers about improving workplace conditions Protected Concerted Activity “Section 7 Rights”

33. American Medical Response of Connecticut, Inc. fired EE after discovering negative comments on Facebook. NLRB issued a complaint against the company on Oct. 27, 2010. NLRB claimed company had overly restrictive policy about EE blogging & internet posting which infringed on their rights to discuss working conditions with each other. What? The “N . . .L . . .R . . .Who?”

34. Quiz Time!

35. The Walmart Way • Walmart employee disciplined after posting comments on Facebook complaining about management “tyranny” and using off-color Spanish word to refer to a female assistant manager

36. The Walmart Way • NLRB said no violation because postings were an “individual gripe” rather than an effort to discuss work conditions with co-workers.

37. Car salesman at BMW dealership fired after posting comments on Facebook complaining dealership served overcooked hot dogs, stale buns & other cheap food instead of nicer fare at an event to roll out a posh new car model Hot Dogs & BMWs

38. Hot Dogs & BMWs • NLRB found comments were legally protected because salesman expressing concerns about the terms and conditions of his job, frustration he had earlier shared in person with other employees

39. “You Might Want To Take a Taxi!” • Employee at emergency transportation & fire protection company fired after posting on her U.S. Senator’s Facebook wall complaining that her company skimped on wages & that its cheap service compromised quality of care

40. “You Might Want To Take a Taxi!” • NLRB declined case, saying employee didn’t discuss her complaints with other workers or show any attempt to take employee complaints to management.

41. Advanced Potions Handbook Employee Handbook • “Information regarding employee wages and benefits is confidential. Employees are prohibited from disclosing or discussing wage and benefit information.”

43. “THAT’S ALL, FOLKS! LAW OFFICE OF CHRIS A. SCHERER 210.558.1004 chris@cschererlaw.com www.cschererlaw.com