2017 financial & risk management forum: technology trends and traps

Controlling Employee Personal Behavior in the Age of Social Media and Personal Technology

Jason M. BranciforteNovember 8, 2017

Jason M. BranciforteShareholder

Littler, Washington D.C.

[email protected]

202.414.6867

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mailto:[email protected]

Vignette #1:

The Unsocial

Network

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© Littler Mendelson, P.C. | 2017 Proprietary and Confidential

• Supervisor Mark and Erica have had an inappropriate back and forth.

Here are some of the legal issues:

– Gender discrimination: caregiver responsibilities & breastfeeding

issues;

– Lactation accommodation issues;

– Wage and hour; and

– Concerted activity.

Out of Control Employee:

What Happened?

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• A group meeting is never the place to address

one team member’s performance deficiencies.

• Supervisor Mark should have identified what

needed to still be accomplished on the project

and focused on delivering to the client.

• Personal issues such as pumping breaks and

childcare responsibilities should have been

addressed separately.


What should have been different?

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• If Supervisor Mark had not blown up at Erica, he could have arranged a

meeting with her and Human Resources to address her performance

deficiencies.

• Human Resources should address the issues about pumping breaks,

work schedules and potential use of personal devices for work

purposes.

• It goes without saying that Human Resources should also follow-up with

Erica to ensure that she is recording all time spent checking text

messages (assuming she is non-exempt).


What should Supervisor Mark do now?

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• Wage and Hour issue #1 – has Supervisor

Mark asked Erica to work off the clock?

• Wage and Hour issue # 2 – does Erica

have a claim for unreimbursed expenses on

her personal cell phone? What if she is in

California?

• Employee Morale – could Supervisor Mark

have avoided Erica’s angry Facebook post if

he hadn’t attacked her in the meeting (or

would she have acted that way regardless)?


Missed Opportunities

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Vignette # 2:

The Situation

Worsens . . .

“Facebook

Face-Off”

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• Employee discipline resulting from online conduct

• Managing supervisors “friending” direct reports

• Supervisors “requesting” Employees’ social

media login

• Impact of online post going viral and accessed by

clients, business contacts and competitors

• Political or religious activity using company

electronic resources

• Employee surveillance of workplace activity on

employee owned device

Legal and Business Issues to Consider:


• Emerging Trends:

– Dual Use Devices: shift from use of employer-owned and controlled

electronic resources to employee-owned equipment used for work

and personal activity

– Blurred Distinction: line between work life and personal life

merging

• Potential Risks:

– Cyber harassment and bullying

– Disclosure of confidential information and trade secrets

– Safety, data privacy and security breaches

– Damage to morale, reputation or goodwill

– Wage and hour considerations

Lawful Off-Duty Conduct:

Off-the-clock Virtual Communications


• Before taking action, employer should carefully

weigh the employer’s legitimate business

interests versus the employee’s personal rights.

• Consider:

– Lawful, off-duty conduct laws;

– Legally protected whistleblowing;

– National Labor Relations Act (NLRA)

provisions prohibit all employers from

restricting discussion among employees

about the terms and conditions of their

employment.

Employee Discipline for Off-Duty Conduct


• Can Erica call Mark a “Sexist Pig” and get away

with it?

• Disparagement or protected activity? Beware

NLRB broad interpretation of “protected concerted

activity”

– Subject Matter: related to terms and conditions of

employment

– Concerted Activity: collective activity versus

individual gripes

– License to Curse: profanity and offensive

language permitted

– Possible Exception: verbal or physical threats

Disparagement or Protected Activity?

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• Supervisors connecting with

subordinates on Facebook raises

significant issues and concern for

employer

• Train managers about the dangers

of social media if they choose to

friend subordinates and educate

them about their obligations under

company policy and law.

A Friend by Any Other Name:

Supervisors “Friending” Subordinates


Legal Uses of Social Media:

• Can Employers require applicants and Employees to disclose their social media login?

• “Legal” uses of social media information about Employees:

– Background checks

– Deter and investigate harassment of coworkers

– Discourage employees from posting comments that disparage the employer’s products or services

– Protect trade secrets

Recent Legislation:

• Federal – Social Networking Online

Protection Act introduced on April 27,

2012.

• States – Maryland law prohibits

employers from requesting social

media log-in information.

• Similar laws pending in CA, IL, MN,

NJ, NY and WA.

Hand Over Your Password:

To Ask or Not?


• Can employer prohibit employees

from engaging in political or religious

activity using company electronic

resources?

• NLRA posting and solicitation

concerns

Employee Political and Religious Activity


• Can employers prohibit the use of new

technology to videotape or record workplace

interactions with co-workers or supervisors?

• NLRA Protections - Whenever employees,

unionized or not, meet to discuss wages, benefits

or conditions of employment, their activities - and

an employer’s reaction - are subject to the Act’s

protections

Video and Audio Surveillance in the Digital Age

Vignette #3:

Social Media

Justice

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• Addressing Supervisor Mark’s Conduct – Opportunity for HR to address

how supervisor could have better managed the situation.

• Failure to come to HR at onset of incident instead of angry confrontation

with employee exacerbated difficult situation

• Discuss impact of “friending” co-workers on Facebook and using good

judgment

• Requesting employee to turn over account login

• Texting employees on personal cell phones

• Management style and manner of communication

• Inappropriate comments about lactation breaks and child care

responsibilities

• Issue written warning to manager and require management training

Managing the Out of Control Supervisor


• Carefully Crafted Social Media Policies are Critical

• Be Careful of Provisions Deemed Overbroad by the NLRB:

– Inappropriate Discussions;

– Defamation;

– Disparagement;

– Privacy;

– Confidentiality;

– Contact Information;

– Logo; and

– Photographs.

• Is disclaimer sufficient?

Effective Measures to Prevent

Virtual Landmines

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• Prohibiting employees from being pressured

to friend or connect with a coworker via

social media

• Maintain confidentiality about sensitive

information

• Employees not authorized to comment on

media inquiries and all inquiries should be

addressed to specific manager

• Maintaining good will and brand reputation

• Restrictions on employees’ social media

conduct should be narrowly tailored to meet

legitimate objectives

Permitted Policies


• Develop & Implement a Comprehensive

Electronic Resources Policy for Your

Workplace

• Conduct a Use Audit of Your Electronic

Resources

• Conduct an Electronic Resources Training

Program

• Consider Monitoring Employee Use of the

Business’s Electronic Resources

• Establish Uniform Standards of

Enforcement for Your Electronic Resources

Policy

• Train supervisors

Practical Recommendations to Manage Electronic

Resources While Meeting Employment Law

Requirements


• What is it?

– The fear of being without a mobile

device, or beyond mobile phone

contact

• In the U.S.:

– 65 percent, or about two in three

people, sleep with or next to their

smart phones. (Among college

students, it’s even higher).

– One in five people would rather go

without shoes for a week than take a

break from their phone.

– More than half never switch off their

phone.

“Nomophobia”


• 30% of workers worldwide believe it is

acceptable to use social media during work

hours

• Worldwide, there are 1.28 BILLION Facebook

users (with 4.5 billion “likes” each day)

• In 2014, highest Facebook usage reported from

1 PM – 3 PM during the week

• Average time spent on Facebook is 20 minutes

• 11% of employees admit to trying to hide their

social media activity from employers or co-

workers

• Experts predict that 60% of employers currently

monitor employee social media activity

Fun With Statistics

The Benefits

v. Risks of

Social Media

Use at Work

Is there a perfect

balance?


• New avenues for businesses to

market themselves, brand their

products, and develop customer

relationships

• Foster internal networking and

sharing of ideas among

employees

• Improve recruitment, applicant

screening and hiring

• Monitor employee conduct that

may reflect positively or negatively

on the company

• New sources of fodder in litigation

(cuts both ways!)

Possible Benefits of Social Media Use


• Challenges for employers include:

– Loss of Productivity and

– Discipline/Termination Decisions

• 74% of employees surveyed say it’s easy

to damage a company’s reputation on

social media

• 37% of employees said they rarely/never

consider what their boss would think when

posting comments, photos, or videos

online

A Razor’s Edge?


• Employee Morale/Gripe

Sessions

• Harassment/Title VII

• Defamation

• Disclosure of Trade Secrets

• Misuse of Intellectual Property

• Bandwidth Bottleneck

• Excessive Use (slacking)

• Violates Other Policies

• Porn, Obscenity

• “Sexting”

• Use creates security breach

• Violence

• Union Organizing

Social Media Use Poses Perils

Employee Misconduct


Many Employers Lack Rules

for Workers' Social Networking Activities

• 1/2 of employers lack a policy to address

employees' use of social networking

websites outside of work

• 1/4 already have disciplined an

employee for improper activities on

social networking sites

• Only 10 percent have a policy

specifically addressing social networks

– Sept. 25, 2009 Society of Corporate

Compliance and Ethics and the Health

Care Compliance Association Survey


• Employees have instant access to confidential information that can be

instantly shared with anyone with an e-mail account -- or, posted on the

Internet -- with a few keystrokes.

• Social Media tools can be used to transfer files, documents, and other

information from an employer to yourself or to another organization.

The Challenge


• Technical Formulas

• Unique Processes

• Drawings & Diagrams

• Experimental Prototypes

• Current Cost/Pricing Data

• Manufacturing Methods

• Product Specifications

• Patents

• Copyrights & Trademarks

• Sales/Marketing Information & Forecasts

• Budgets & Forecasts

• P & L Statements

• Financing terms, compensation

• Strategic Business Plans

• Proprietary Software

• Compilations

Information Generally Entitled to Protection

Employee

Discipline

and

Investigation

s

Considering Social

Media Policies


Video - SNAPCHAT


Snapchat


54% of U.S. CIOs completely

prohibit access to social

networking sites using

corporate resources

Robert Half Technology (2010)

Security Breaches


1. Policy applies to all Web 2.0 activities

– E.g., Social networking, blogging, YouTube,

Twitter, bulletin boards, chat rooms

2. Permit/prohibit use of company resources

3. Monitoring Electronic Activity

Scope Of Policy


Affirmative Guidelines

1. Comply with all company policies

– e.g., Confidentiality, Anti-Harassment

2. Be truthful; be respectful

3. Resolve HR complaints internally

4. If you need clarification, contact HR or your manager

Prohibited Conduct

1. Do not disparage

2. Do not use the company’s logo, graphics, or photos of the company

3. Do not post anonymously about the company

Guidelines for Off-Duty Social Media Use


Affirmative Guidelines

1. You are responsible; Take it

seriously

2. Create excitement; Add value

3. Be respectful; Use good

judgment

4. Be a leader; Admit mistakes

5. Complain to HR about misuse

Prohibited Conduct

1. Disclosing confidential information

2. Discussing internal company

matters

3. Violating company policy

4. Posting anonymously

5. Slacking

Guidelines for On-Duty Social Media Use

Questions

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This information provided by Littler is not a substitute for experienced legal counsel and does not provide legal advice or a ttempt to address the numerous factual issues that inevitably arise in any

employment-related dispute.

Although this information attempts to cover some major recent developments, it is not all-inclusive, and the current status of any decision or principle of law should be verified by counsel.

Thank You!

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2017 financial & risk management forum: technology trends and traps

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