2015 Annual Conference

The purpose of this presentation and handout is an educational overview. Nothing in either should be construed as specific legal advice for a particular situation. Sound legal advice requires an understanding of all the facts of a particular situation, something that cannot occur in this educational presentation.

The Robert Half survey conducted by an independent research firm based on telephone interviews with 150 randomly selected employers at the top 1,000 companies in the United States, found that 48 percent of employers are uncomfortable about ‘friending’ their employees on Facebook.

Social networking are invading even adult interactions. The issue used to be, "Which friends will I 'friend?'" But what about when a supervisor wants to friend someone they supervise? And what about the other side of the coin—what about if subordinate wants to “friend” the supervisor? What about co-workers? Parents of student-athletes and a coach?

The seemingly innocent practice of sending friend requests to staff via Facebook, Twitter and other sites can trigger a slew of legal claims, including harassment, discrimination or wrongful termination, as well as touch off complaints of favoritism if the supervisor friends only a select person or persons.

The line between personal and professional communication is increasingly blurred as more people use social networking websites.

Employees, even if they aren't going to connect with

co-workers on social networking sites, need to be prepared to deal with requests for “friending” and such.

The practice of supervisors and employees mingling online is rife with legal concerns: What happens if a manager learns too much about an employee? Could what a manager sees be used in a discrimination suit?

Facebook has just rolled out a feature called Sponsored Stories that lets marketers repurpose activities such as "liking" a fan page, checking into a retail store or interacting with a branded app as advertisements that users see when they log in to the social network.

And this happens automatically -- any time you interact with a

brand on Facebook, your action could be used as an ad that entices your friends to do the same. For the moment, there's also no way to opt yourself out of being featured.

Facebook's not alone in this type of targeting, however. Business-

focused social networking site LinkedIn has added the ability to target ads based on job titles, company name and group level, features that the company says have resulted in three to four times more clicks than standard ads during initial testing.

Leadership is a process whereby an individual influences a group of individuals to achieve a common goal. (Northouse 2003)

Political Economic Legal Cultural/Historical

Personal- Confusing likability with credibility

Confusing popularity with achievement

◦ Affect ◦ Communication Style ◦ Boundary Decisions (awareness, or lack thereof, of characterized)

How did you come to know? How did you communicate? ◦ District issued email? Text?

Did you say? ◦ Frustration? Jest? Purposeful?

Work Related or Social? ◦ FLSA?

Confidant? Friendly? Overly friendly? TMI? Favoritism? ◦ Exempt? Non-Exempt?

“achieve a common goal”

Jimmy Chitwood

I Don’t Care If You Play or Not !!!

You Ain’t No Norman Dale and What It Is That Has Changed !!!

Educational Value? Pedagogical Rationale? Mere Convenience?

Huh ? What ? Really ???

On August 18, 2011, not long after the publication of those Advice Memos, the NLRB’s General Counsel issued a lengthy memorandum to all Regional Directors that summarizes the Board’s resolution of more than one dozen “social media cases,”

http://privacyblog.littler.com/uploads/file/NLRBAugust18Memo.pdf

The August 18, 2011, Memorandum summarizes four cases that concluded that the employer’s discipline violated the NLRA. In a nutshell, these cases involved the termination of one or more employees based on the following social media conduct:

While preparing for a meeting with management, an employee asked coworkers on her Facebook page for their reaction to another employee’s complaints about work quality and staffing levels at the employer;

An employee complained on her Facebook page about her supervisor’s refusal to permit a union representative to assist her in responding to a customer complaint about the employee;

A salesmen at a car dealership criticized on his Facebook page the dealership’s handling of a sales event intended to promote a new car model and posted mildly mocking photographs that included his coworkers;

Employees posted on Facebook about the employer’s failure to withhold state income taxes, resulting in the employees’ receiving payment demands from state tax authorities.

In all of these cases, employees posted on their own Facebook page, on their own time, and using their own equipment.

When viewed as a group, these cases have a common thread that provides substantial insight into how the Board analyzes social media cases. Most importantly, the subject matter of each of these posts related to the terms and conditions of employment, the exercise of rights conferred by the NLRA, or other matters traditionally considered “protected activity” under the Boards’ precedent. The topics included: (a) preparation for a discussion with management about employees’ job performance and the employer’s staffing levels; (b) the right in a unionized workplace to union representation during an investigatory interview by the employer; (c) conduct by the employer (a sales event) that could have an impact on employees’ compensation (their sales commissions); and (d) the employer’s administration of income tax withholdings.

Of equal significance, in each of these situations, the General Counsel concluded that employees were collaborating, otherwise known as “concerted activity.” In the first case, the employee was seeking assistance from coworkers in preparation for a discussion with management. In the second case, the employee was discussing supervisory actions with coworkers who were her Facebook friends. In the third case, the employee was expressing the sentiment of his coworkers about the sales event. In the fourth case, employees were sharing concerns about the employer’s failure to withhold state income taxes. None of these cases could be said to involve individual gripes.

According to the General Counsel, the offending Facebook posts in these cases included “swearing and/or sarcasm,” use of a “short-hand expletive,” and references to management personnel as an “asshole” and a “scumbag.” Nonetheless, in each case, the General Counsel concluded that the employer’s termination violated the NLRA.

The General Counsel’s analysis in these cases seems to give employees a license to curse. In finding that an employee did not lose the NLRA’s protections after calling her supervisor a “scumbag,” the General Counsel relied on the following facts: (a) “the Facebook posts did not interrupt the work of any employee because they occurred outside the workplace and during nonworking time;” (b) “the comments were made during an online employee discussion on supervisory action;” (c) “the name-calling was not accompanied by verbal or physical threats;” (d) “the Board has found more egregious name-calling protected;” and (e) “the employee’s Facebook postings were provoked by the supervisor’s unlawful” conduct.

In social media cases, the first three or four factors listed above typically will be present. Thus, the Board effectively is telling employers that they must have a thicker skin when it comes to employees’ raunchy social media posts.

Throughout the August 18, 2011, Memorandum, the General Counsel identified social media policy provisions that the General Counsel deemed overbroad and in violation of the NLRA. At first blush, these determinations are portentous for employers because employers routinely include the challenged provisions in their social media policy. However, the August 18, 2011, Memorandum suggests — at least implicitly — how employers can retain these commonly used policy provisions without running afoul of the NLRA.

The list of policy provisions found to be overbroad is lengthy but worthy of repetition. The list includes the following:

Inappropriate Discussions: Prohibition against “inappropriate discussions about the company, management, and/or coworkers;”

Defamation: Prohibition on any social media post that “constitutes embarrassment, harassment or defamation of the [company] or of any [company] employee, officer, board member, representative, or staff member;”

Disparagement: Prohibition against “employees making disparaging comments when discussing the company or the employee’s superiors, coworkers and/or competitors;”

Privacy: Prohibition on “revealing, including through the use of photographs, personal information regarding coworkers, company clients, partners, or customers without their consent;”

Confidentiality: Prohibition on “disclosing inappropriate or sensitive information about the Employer;” Contact Information: Prohibition on “using the company name, address, or [related] information on [employees’]

personal profiles;” Logo: Prohibition on using “the Employer’s logos and photographs of the Employer’s store, brand, or product,

without written authorization;” Photographs: Prohibition against “employees posting pictures of themselves in any media . . . which depict the

Company in any way, including company uniform [or] corporate logo.”

Should employers conduct online searches of job applicants? That's one of the questions I'm asked most often by employers when talking about social media. One of the less commonly asked questions is whether employers should conduct the same type of online search after the hiring decision has been made. In other words, should employers monitor their employees' online activities during employment?

2015 Annual Conference

2015 Annual Conference

2015 Annual Conference