Social Networking: Avoiding Legal Issues

1. Social Networking:Avoiding Legal Issues Social Networking in the Modern Workplace Joseph McCoin jmccoin@millermartin.com

2. The Social Networking Wave (Tsunami?) Cell Phones Web Sites Chat Rooms Blogs Texting (SMS) Wikis

3. How Employers are Surfing the Web Recruiting Background checks Investigations Marketing Efforts Other Consumer-based Uses

4. Benefits of Social Networking Immediate Access Relatively Cheap Able to Contact Large Masses Able to Target Others?

5. So, What�s the Downside? Loss in employee productivity

6. So, What�s the Downside? Loss in employee productivity Potential discrimination claims

7. So, What�s the Downside? Loss in employee productivity Potential discrimination claims Fair credit reporting laws

8. So, What�s the Downside? Loss in employee productivity Potential discrimination claims Fair credit reporting laws Privacy concerns/off-duty conduct statutes

9. So, What�s the Downside? Loss in employee productivity Potential discrimination claims Fair credit reporting laws Privacy concerns/off-duty conduct statutes Employee postings that are harmful to the company

10. So, What�s the Downside? Bath in Burger King Sink

11. Employee Posting Pitfalls Divulgence of trade secrets or other confidential information Divulgence of future business plans or products Comments on legal matters/pending litigation Discussions that may violate company policy Anti-harassment policies Non-solicit agreements Others?

12. Employee Posting Pitfalls An assistant walks into the office and finds an explicit picture lying on the printer next to her desk. Your IT department determines that the picture was sent from her boss� computer. Come to find out, he likes to surf internet porn sites at work because his wife won�t let him do it at home. What do you do? Does it matter whether you have a policy addressing an employee�s expectation of privacy with respect to emails and computer usage? What if some of the sites surfed are child pornography?

13. Employee Posting Pitfalls An employee has a MySpace page on which he talks poorly about his supervisor, calls the supervisor some profane names, and threatens to get him one day after work. What can you do? Does it matter what computer the employee uses to access the MySpace page? What if the employee is talking poorly about company policies, like pay or vacation time? What if the employee blogs his �message� and other employees join in?

14. Employee Posting Pitfalls Divulgence of trade secrets or other confidential information Divulgence of future business plans or products Comments on legal matters/pending litigation Discussions that may violate company policy Making claims for which you may be held liable

15. Employee Posting Pitfalls An online message board designated for discussions of new music download technology is frequented by MP3 player enthusiasts. They exchange information about new products, utilities, and the functionality of numerous playback devices. Unbeknownst to the message board community, an employee of a leading playback device manufacturer has been posting messages on the discussion board promoting the manufacturer�s product. Knowledge of this poster�s employment likely would affect the weight or credibility of her endorsement. What if the poster made claims about the product that turned out to be untrue? And cost the message board community money?

16. FTC Guidelines October 5, 2009 � FTC released its Final Guides Concerning the Use of Endorsements and Testimonials in Advertising Requires endorsers, including employees, to disclose �material connections� that exist between endorsers and the product/company about whom they comment �Material connections� includes an employment relationship Designed to protect consumers from deceptive endorsements or advertisers But, goes well beyond what some expect

17. FTC Guidelines Holds companies accountable for actions of employees Any online recommendation or other endorsement of clients, customers, suppliers, or other third parties based on the express or implied promise of compensation, kickbacks or continued business may result in potential liability for employers under these new guides Company can be held liable for unsubstantiated or false claims made by employees even if they are not authorized to make such comments

18. So, Can�t I Just �Dooce� Them? Doocing � terminating an employee for inappropriate, off-duty online communications related to employment. Heather Armstrong created a blog, www.dooce.com, where she posted gripes about her employer and made unflattering comments about her supervisors and co-workers Armstrong was terminated from her web design position for violating the company�s zero-tolerance policy regarding negativity

19. So, Can�t I Just �Dooce� Them? A few other laws to consider National Labor Relations Act Electronic Communications Privacy Act (ECPA) First Amendment Whistleblowers

20. Wal-Mart Is an Evil Empire* * Not necessarily the view of the presenters. Description: I think the title of our group is pretty self-explanatory, but here is some extra information in case you need it.Wal-Mart Heiress Returns Degree:http://www.cnn.com/2005/US/10/19/walmart.cheating.ap/They are on the Top 20 list of traders with China; the rest of the U.S. as a whole is on that same list. Over 80% of their stuff is from China, yet they claim that they're trying to help the everyday Americans. The people that shop at Wal-Mart the most are the union workers that are losing their jobs when the companies move their factories to China, and Wal-Mart is only supporting it. So much for supporting the people they claim to support.. . .

21. National Labor Relations Act You do not have to be unionized for the NLRA to apply! Section 7 of the NLRA gives employees the right to engage in �concerted activity for the purpose of collective bargaining or other mutual aid and protection. �

22. National Labor Relations Act Examples of protected concerted activities: 2 or more employees address their employer about improving their working conditions and pay. 1 employee speaks to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions. 2 or more employees discussing pay or other work-related issues with each other.

23. National Labor Relations Act Sears Holdings (Roebucks), Case 18-CA-19081 (Dec. 4, 2009), the NLRB�s Division of Advice answered the question of whether Sears Holding Company�s Social Media policy violated the NLRA. http://www.nlrb.gov/shared_files/Advice%20Memos/2009/18-CA-19081.pdf

24. National Labor Relations Act Under the Social Media Policy, employees couldn�t post: Company confidential or proprietary information Confidential or proprietary information of clients, partners, vendors, and suppliers Embargoed information such as launch dates, release dates, and pending reorganizations

25. National Labor Relations Act Under the Social Media Policy, employees couldn�t post: Explicit sexual references Reference to illegal drugs Obscenity or profanity Disparagement of any race, religion, gender, sexual orientation, disability or national origin

26. National Labor Relations Act Under the Social Media Policy, employees couldn�t post: Company intellectual property such as drawings, designs, software, ideas and innovation Disparagement of company�s or competitors� products, services, executive leadership, employees, strategy, and business prospects

27. National Labor Relations Act Test for whether a work rule is valid: Obvious prohibition of Section 7 activities (e.g., �employees who discuss a union will be fired�)? Would employees reasonably construe the rule to prohibit Section 7 activities? Was the rule promulgated in response to union organizing? Has the rule has been applied to restrict the exercise of Section 7 rights?

28. National Labor Relations Act The Register Guard, 351 NLRB 1110 (2007). Can employees use their employer�s e-mail system for Section 7 purposes? The majority ruled that employees had no statutory right to use the employer�s e-mail system. The dissenters now in the majority.

29. Electronic Communications Privacy Act (ECPA) Makes it unlawful to: Listen to or observe the contents of a private communication without the permission of at least one party to the communication Intentionally intercept, access, disclose, or use one�s electronic communications, which has been interpreted to include email.

30. Electronic Communications Privacy Act (ECPA) Exceptions that are helpful to employers: The Provider Exception � available to employers who provide their employees with email through a company-owned system. Ordinary Course of Business Exception Content Approach � permits employers to monitor business-related communications but not personal ones. Context Approach � must be a legitimate business reason for monitoring Consent Exception � employees either impliedly or actually consent to monitoring

31. First Amendment Rights This is a free country � I can say what I want � can�t I? Well, maybe not Just because you have a personal website or like to blog in your free time, what you say is not necessarily protected by the First Amendment The First Amendment offers no protection from termination by private employers

32. So What Is A Business To Do? Anticipate the Pitfalls Even if your employees do not use computers at work, they probably do at home � and they may be talking about you Every employer in every work environment should consider how social media could impact its workforce or company What steps should you take now to avoid problems down the road?

33. So What Is A Business To Do? Establish Clear Policies Hardware, software & systems Harassment Trade Secrets Confidentiality, non-compete, and non-solicitation Use of Electronic Communication on Non-Working Time Social Networking & FTC requirements

34. What Should the Policy Include? Prohibited Subjects: In order to maintain the Company�s reputation and legal standing, the following subjects may not be discussed by associates in any form of social media: Company confidential or proprietary information Confidential or proprietary information of clients, partners, vendors, and suppliers Embargoed information such as launch dates, release dates, and pending reorganizations

35. What Should the Policy Include? Company intellectual property such as drawings, designs, software, ideas and innovation Disparagement of company�s or competitors� products, services, executive leadership, employees, strategy, and business prospects Explicit sexual references Reference to illegal drugs Obscenity or profanity Disparagement of any race, religion, gender, age, sexual orientation, disability or national origin

36. So What Is A Business To Do? Whose job will it be to monitor violations? Who will monitor your social media activity? Automated resources available such as Google Alerts How will you discipline violators?

37. QUESTIONS

38. Social Networking:Avoiding Legal Issues Social Networking in the Modern Workplace Joseph McCoin jmccoin@millermartin.com