Gizmos and Gadgets in the Workplace: The Impact of Social Media and New Technologies

1. Gizmos and Gadgets in the Workplace:The Impact of Social Media and New Technologies

2. The National Labor Relations Board (NLRB) and Social Media

3. Does This Even Apply To Me? • Almost certainly, yes • Certain provisions of the National Labor Relations Act (NLRA) apply to both unionized and non-unionized employees • Section 7 of the NLRA guarantees employees 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 purpose of collective bargaining or other mutual aid or protection”

4. Why Should I Care? • The NLRB has filed complaints in all 50 states concerning social media or electronic communications policies • If you fire or discipline an employee for making disparaging remarks about managers or companies, you may be at risk of violating Section 7

5. What Does This Have To Do With Social Media • The NLRA protects “protected concerted activity” • Two or more employees acting together to attempt to improve the terms and conditions of their employment • Applies to nearly all social media • Anything that has a “chilling effect” on protected concerted activity may run afoul of the NLRA

6. What Exactly Is The NLRB’s Position? • Employers may not "interfere with, restrain, or coerce employees in the exercise of their Section 7 rights” • Rules that are ambiguous as to their application of Section 7 activity violate the NLRA • Rules that do not contain any limiting language or context that would clarify that the rule does not limit Section 7 rights violate the NLRA • Anything that would have a chilling effect on the exercise of Section 7 rights violates the NLRA

7. What Exactly Is The NLRB’s Position? • For example: • Prohibiting employees from expressing their personal opinions to the public regarding the work place, work satisfaction or dissatisfaction, wages, hours or work conditions • Outright prohibiting employees from using employer’s logos and trademarks (pickets, leaflets) • Generally prohibiting disclosure of personal, confidential or propriety information • Statements reserving the right to monitor public blogs and social networking forums for the purposes of enforcing the social media policy

8. What Exactly Is The NLRB’s Position? • Asking employees not to pick fights or post controversial information • Prohibiting offensive, demeaning, abusive, or inappropriate remarks • Prohibiting discussion of legal issues or pending legal actions • How to avoid problems: list examples, be specific

9. The Top 5 Issues Every Social Media Policy Should Address

10. Consent To Be Monitored • Establish that information systems are the property of the employer • Explain diminished right to privacy • Reserve the right to monitor • Get a signed acknowledgement of the policy

11. Define Social Media: It’s Not Just Facebook • Uploading or posting • Written or graphic • Interactive electronic communications, websites, blogs, social networks, discussion boards, listservs

12. Restrict Use of Private Social Media Channels During Work Time • Can restrict use during “on the clock” time • If you allow occasional use at work, state that it should not interfere with job duties • Consider system blocks on certain websites (Facebook, LinkedIn, Twitter, blogs) • Can prohibit employees from using company-issued email address to engage in non-work-related social media communications

13. Make Sure It Is Clear That The Employees’ Views Are Their Own • Explain that the employer respects their right to communicate with others about their employment • Important that employees’ views are not confused with the company’s views when discussing matters that may affect the company’s business • Be careful: NLRB concerns

14. Restrictions On What An Employee Can Post About His or Her Employment • Reminder: what you post online can have significant workplace affects • All other policies are in effect for social media: • No unlawful activity • Restrictions on providing references (e.g. LinkedIn) • Harassment • Defamation (employer, superior, co-worker, products, competitor) • Company logos, branding, confidential and proprietary information, etc. • Again, be careful: NLRB concerns • Reserve the right to take disciplinary action if communications violate company policy

15. Questions? Monica H. Khetarpal Partner Jackson Lewis LLP 150 North Michigan Avenue Suite 2500 Chicago IL 60601 (312) 787-4949 monica.khetarpal@jacksonlewis.com

16. Primer on Drafting Bring-Your-Own-Device (BYOD) Policies

17. BYOD Policies: Best Practices • Determine whether BYOD policy should apply to all employees (e.g., nonexempts, employees with access to confidential information/trade secrets) • Ensure that policy complies with local laws • EU data privacy laws place restrictions on BYOD practices and policies

18. BYOD Policies: Best Practices • Adopt a BYOD policy • Ensure that policy makes clear that employees have no reasonable expectation of privacy • But limit ability to monitor, collect, or share personal data on devices • Consider individual BYOD or personal device agreements with employees in addition to policies • Litigation-hold memos should cover personal mobile devices

19. BYOD Policies: Best Practices • Update and revise other policies and agreements • Update harassment/nondiscrimination policies to include the use of mobile devices • Update Code of Conduct and applicable policies/agreements to compel employees to turn over mobile devices to employers for investigation

20. BYOD Policies: Best Practices • Require employees to immediately report stolen/lost mobile devices, so that devices can be remotely wiped • May result in loss of personal photos, music, and information unrelated to the employer • Consider “sandbox” software – segregating personal and business data on employees’ devices • Consider whether to allow employees to place employer’s confidential information into cloud-based storage systems

21. BYOD Policies: Best Practices • Ensure compliance with state laws if the employer insists on the employee providing passwords to his or her device • Consider whether to reimburse the employee for the cost of his or her personal device • Provide the employee with a choice of an employer-issued device or technology allowance for the purchase of an approved device, and/or reimburse the employee for the cost of a device

22. BYOD Policies: Best Practices • Implement security measures • Deploy mobile device management (MDM) tools to increase security • Require users to register the device as a condition of network access • Require strong passwords on the device • Encrypt data sent outside the corporate firewall • Block access to “blacklisted” sites or applications • Enable remote wipes to the extent permitted by law

23. Questions? Prashanth Jayachandran Of Counsel Morgan, Lewis & Bockius 502 Carnegie Center Princeton NJ 08540 609.919.6626 pjayachandran@morganlewis.com

24. Existing and Pending Legislation and Regulations at Federal and State Level (An Overview)

25. “Web” of Social Media Obligations

26. Electronic Communications Privacy Act

27. Password-Protection Legislation: Federal (proposed) • Password Protection Act (2013) • Bipartisan support • The new bill seeks to prevent employers from requiring current and prospective employees to hand over their personal social media passwords as a condition of either keeping or getting a job • What happened to…Social Networking Online Protection Act (SNOPA)? • Broader bill that would have covered passwords for social networking websites as well as email and any other “personal user generated content: requested by employers. • Died in Committee

28. Password-Protection Legislation: State

29. Employers Bewareof “One Size Fits All” Approach to Social Media • The “password protection” frenzy has produced hastily crafted, incomplete and non-uniform state legislation. • Key problems with the statutes enacted or pending in many states include: • Failure to define key terms • Broad prohibitions • Nonexistent or poorly worded exceptions • Given varying obligations, multi-state employers may need to adapt social media policies to unique state requirements.

30. Questions? Reema Kapur Associate Seyfarth Shaw LLP 131 South Dearborn Street Suite 2400 Chicago IL 60603-5577 312-460-5952 rkapur@seyfarth.com

31. Social Media in Recruiting Do’s and Don'ts

32. SOCIAL MEDIA IN RECRUITING • Employers are increasingly using LinkedIn, Facebook and Twitter (and other social media) to find and/or vet prospective employees: • 73% of employers currently use online social networks or social media sites to support their recruiting efforts. • 92% of employers hiring in 2010 currently use or plan to recruit via social networks. • 78% of employers use LinkedIn for recruiting; 55% use Facebook; and 45% use Twitter. • 58% of employers have successfully hired candidates through social networking websites. • One-third of employers always check out candidates’ social media profiles when vetting them. • Source: Jobvite’s 2010 Social Recruiting Survey

33. Social Media in RecruitingLegal Risks • Discrimination– May Learn Protected Characteristics or Information • Discrimination– How and When Used May Support Inferences of Discrimination • Discrimination (Impact) - Protected Groups May be Excluded from Applicant Pools • Retaliation– May Learn of Protected Activity • Free Speech – May Learn of Protected Speech

34. Social Media in RecruitingTop Ten Do’s and Don'ts • Not the Only Source • Know the Applicant Pools • Be 100% Consistent In Use • Consider Information After Face-to-Face Interview • Do Not Let Decision-Makers Conduct Searches • Use a Skilled Third-Party to Filter Information • Do Not Rely on For Final Employment Decisions • Document Recruitment Efforts • Document Objective and Relevant Criteria • Clear Policies About Use In Recruiting

35. Questions? P. Bobby Shukla Associate Law Offices of Stephen M. Murphy 353 Sacramento Street Suite 1140 San Francisco CA 94777 415-986-1231 bshukla@sick-leave.com

36. Hypo #1 • An hourly employee uses his cell phone to show his manager a recent negative Facebook posting made by a fellow co-worker that calls the manager out by first and last name and work location. The post refers to the manager as a #$&%$&%$ and states that the manager should be fired. The hourly employee explains that there are other employees who have commented on the post, stating, among other things, agreement with the original post and complaining about and describing in detail the company’s healthcare benefits. Additionally, a few comments contain profanity bad-mouthing the co-worker who made the original post for speaking against the manager. • The manager is greatly offended by the post and feels like personal information about her (first and last name, work location) should not be used. The Company is considering disciplining the employee who made the original post for showing disrespect and using profanity, and disciplining those who described details of the company’s healthcare benefits for sharing confidential information. How should you advise your client regarding these potential actions?

37. Hypo #2 • Employer discovers network has been infected by a virus that targets the employer’s financial and client data.  It traces the issue to an employee’s download on an employer-issued device.  The employee visited a social networking site during off hours and downloaded the virus through a link accessible through his networking account.  The company calls you and asks what steps it can take to protect its data and to investigate the breach.

38. Hypo #3 • Applicant for a marketing position sends a resume and includes contact information and Linkedin account address. The applicant has excellent credentials and is hired.  The employee hits the ground running and immediately comes up with a comprehensive marketing message; adds several of the company’s existing clients as connections and actively reaches out to other Linkedinmembers who fit the company’s client profile.  The employee updates the Linkedin account to reflect his current employer, changes profile name to reference the approved marketing message, and posts regularly regarding messages that reinforce the marketing theme.  The employee also uses the Linkedin account to keep up with alumni network, colleagues from previous employment positions, and friends/family. Your client wants to know if the employee moves on to another position, who owns the Linkedinaccount and “connections”?

39. Hypo #4 • The Company learns that Carl, a VP in Marketing, is preparing to leave the Company and start a competing business.  The SVP would like to undertake a series of steps to gather information.  Can the Company: • Review all of Carl’s company email, as well as his Internet use history; • Review all emails from Carl’s Gmail account that he accessed from his Company laptop, which appear in the temporary Internet files; • Secretly install a keystroke recording program that records all of his keystrokes on the Company computer; • Attempt to “friend” Carl on Facebook by having someone join Facebook, pretend to be a venture capitalist, and ask him about his plans. • Get the confidential password to a website that Carl set up for himself and friends that is only accessible by using a password Carl has given out to only a few people, none of which are managers in the Company.  Can the Company get and use the password from a co-worker it learns has the password?