Where Do We Go From Here? – Social Media
Guidance for Employers
ISC SHRM ConferenceAugust 22, 2011
Lisa R. Callaway, JD, SPHRThe Management Association of
Illinois
© 2011 The Management Association of Illinois
Overview
• Business concerns• Legal issues• Privacy/monitoring issues• Protected concerted activity• Policy recommendations
© 2011 The Management Association of Illinois
© 2006 The Management Association of Illinois
Business Concerns
Why are employers so worried?
• Negative publicity• Loss of control• Productivity• Paranoia?
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Legal Issues
Why are employers so worried?
• Trademark and copyright infringement
• Protecting trade secrets• Harassment claims• Defamation issues
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Legal Issues
Why are employers so worried?
• Illegal activity• First Amendment issues
(public sector employers)
© © 2011 The Management Association of Illinoise
What employees do when we’re not watching…
http://youtu.be/CvVp7b5gzqU
A Comcast technician came to replace a faulty modem. After spending an hour on hold with Comcast's central office, he fell asleep on my couch.
© 2011 The Management Association of Illinois
Privacy and Monitoring
Competing InterestsEmployer’s need/right to monitor
the workplace and employee activity while on the job
vsEmployees’ expectations of
privacy
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Privacy and Monitoring
• The conflict between work and private life– Culprits –
Demise of lifetime jobs Increase in females in the
workplace 24/7 technology
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Privacy and Monitoring
• Crucial Questions1. Does the employee have a
reasonable expectation of privacy?
2. Is the employee engaged in protected concerted activity?
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Electronic Monitoring
• Electronic Communications Protection Act (ECPA)– Title I (the Wiretap Act) – prohibits
employer from intercepting wire, oral or electronic communication Exceptions:
1. One party consents2. If conducted in the ordinary course
of business; if employer intercepts and finds call is private, employer must end surveillance
© 2011 The Management Association of Illinois
Electronic Monitoring
• Electronic Communications Protection Act (ECPA)- Title II (the Stored Communications
Act) – prohibits employer from accessing communications stored by communication services Exceptions:
1. Employer provides the communication service
2. User of service authorizes the access
© 2011 The Management Association of Illinois
Electronic Monitoring - Illinois
• Illinois Eavesdropping Statute– Electronic communication = any transfer of
writing, images, sounds transmitted where the sending and receiving parties intend the communication to be private and the interception is accomplished secretly Exceptions:
1. unless interpreter does so with the consent of all parties to the communication
2. conducted by business entity engaged in marketing or opinion research or in phone solicitation© 2011 The Management Association of Illinois
What employees do when we’re not watching…
http://youtu.be/-X0jjdzWXGA
My Boss is Evil
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Monitoring – Case Study 1
• Employee sends sexually-explicit text messages
• Employer-issued pager• Employer discovers messages
when device is searched• Employee disciplined
Was the employer’s search legal?
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Protected Concerted Activity
• Employees have the right to engage in concerted activities for the purpose of mutual aid or protection Section 7 of the National Labor Relations Act
• What does this have to do with social media? Quite a lot!
• We don’t have a union. So what!
© 2011 The Management Association of Illinois
PCA – The Current View
• “In 2007, one cannot reasonably contend … that an e-mail system is a piece of communications equipment to be treated just as the law treats bulletin boards, telephones, and pieces of scrap paper.” NLRB Board Member Wilma Liebman (now chair)
• “Overly broad rules” improperly restrict employees from discussing wages, hours and working conditions.” 2011 NLRB
© 2011 The Management Association of Illinois
Protected Concerted Activity – Case Study 2
• Employee, working for ambulance company, was asked to complete an incident report re: a situation that led to customer complaint
• Employee asked for union rep; company denied• In off hours, employee posted on Facebook that
supervisor was a “scumbag” and a “psychiatric patient.”
• Other employees commented on employee’s post
• Employee was terminated 3 weeks later
Did the employee’s Facebook comments constitute protected concerted activity?
© 2011 The Management Association of Illinois
Protected Concerted Activity – Case Study 3
• Reporter posts tweets on Twitter account– “The Arizona Daily Star’s copy editors are
the most witty and creative people in the world. Or at least they think they are.”
– “What?!?!? No overnight homicide? WTF? You’re slacking Tucson.”
– “Suggestion for new Tucson-area theme song: Droening (sic) pool’s ‘let the bodies hit the floor.’”
© 2011 The Management Association of Illinois
Protected Concerted Activity – Case Study 3
- In response to a misspelling in a tweet by a Tucson-area television news station: “Um, I believe that’s PEDAL. Stupid TV people.”
• Account operated and controlled by employee
• Account identified employee as reporter for local paper
• Employee fired
Did the employee’s tweets constitute protected concerted activity?
© 2011 The Management Association of Illinois
Protected Concerted Activity – Case Study 4
• Car salesman and coworkers were unhappy with quality of food/beverages at a dealership promotional event
• Salesmen complained that sales commissions would suffer as a result
• After event, salesman posted photos and commentary on personal Facebook page critical of event
• Other employees had access to page
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Protected Concerted Activity – Case Study 4
• Following week, employer asked employee to remove posts – he complied
• Employee fired
Did the employee’s Facebook comments constitute protected concerted activity?
© 2011 The Management Association of Illinois
Policy Recommendations
• Have a policy – Clear guidelines– Advise employees they have “no
expectation of privacy or confidentiality when using” employer-issued technology (Quon)
– Do not attempt to overreach in policy – use legally-acceptable jargon (AMR)
• Widely distribute (and frequently review) policy
© 2011 The Management Association of Illinois
Policy Recommendations
• Employer-conducted searches should have legitimate business justification (and limit to work-related issues)
• Train supervisors (on policy and acceptable conduct)
• Supervisors must understand the law of protected concerted activity (notwithstanding union status)
• Ensure discipline is even-handed• Employment at will has limited
application
© 2011 The Management Association of Illinois
Advice to Supervisors
• Use discretion in making/responding to “friend” requests
• Understand organization’s policies
• Behave! Employees mimic what they see.
© 2011 The Management Association of Illinois
Advice to Employees
• Be familiar with organization’s policies on e-mail, Internet and business systems and social media usage
• Limit access to personal e-mail accounts during working time and when using employer’s equipment
• Remember you have a work life when posting on social media sites
© 2011 The Management Association of Illinois