Legal Implications of Social

Media – How to Avoid a Lawsuit

Matthew R. Grabell, Esq.

March 13, 2012

COULD YOU BE NEXT?

Nearly 75% of all lawsuits filed against

businesses are employment related

Employers LOSE approximately 60% of these

cases; The typical jury award is $500,000.00

Typical attorneys fees in case that settles before

trial: $100,000.00

FY2011: 99,947 EEOC Charges filed Highest total EVER

EEOC recovered more than $364M in monetary relief

Individual managers are sued more often

SOME REASONS FOR THE INCREASE

Social Media Has Become Ubiquitous

• 75% of online adults ages 18-24 and 65% of teens ages 12-17

have profiles on a social network

• 7 of the top 20 web sites (usage) are social networking sites

• In 20 minutes, 1,000,000 links are shared on Facebook

• Facebook has over 845 million active users; 1 in every 12

people on Earth is on Facebook

• Twitter usage: 90 million tweets per day.

• An estimated 175,000 blogs are created daily

• LinkedIn has over 56 million professionals

– 2 million join each month…..roughly 1 new sign-up per

second

The Social Media Response

• Employers Say:

–22% have formal policies dictating how employees can use social networking sites

–79% use social networking sites for recruiting

–14% report that their CEO has a Twitter profile

• Employees Say:

–27% don‟t consider ethical consequences before posting comments, photos

–21% report that they access social networking sites during work hours

–58% of teenagers say they would consider the ability to text, tweet and Facebook at work as a criteria when weighing a job offer

©2009 by Adrienne Corn

Human Resources & Social Media Survey

Social Media Goals

• Bolstering Customer Connection

• Replacing Press Releases with Updates

• Communicating Consumer News Quickly

• Keeping Tabs on Competitors

• Addressing Public Relations Issues

• Recruiting Employees

• Monitoring Behavior of Employees

• Improving Internal Communications

As part of its effort to attract talented applicants, your company plans to

encourage current employees to use social media sites for legitimate

business purposes such as promoting company culture, collaborating

and sharing information with coworkers, and networking with others

in the field, including potential applicants. In drafting a social media

policy to guide employee use, which of the following guidelines should

not be included?

A) Employees who communicate about the company shall disclose their affiliation with the company.

B) Employees shall not spend time on non-work related personal blogs during working hours.

C) Employees who post their opinions on personal blogs after working hours that reference the company shall do so only if their opinions represent those of the company.

D) Employees who are blogging and/or using other social media for legitimate business purposes are responsible for complying with all company policies.

E) All should be included

Social Media Liabilities

• Are postings on MySpace, Facebook, Twitter actionable?

• What if the postings contain disparaging remarks about the Company and/or a co-employee?

• What if postings are done outside of work environment?

• Must an employer provide notice to an employee before conducting monitoring of Internet connections?

• Do employees have a right to privacy?

• What are the legal implications of a google search on current or prospective employees?

• Who is your “friend”?

KEEPING YOUR COMPANY IN

BUSINESS AND OUT OF COURT

OPENING THE PLAINTIFF‟S PLAY-

BOOK

THE LEGAL IMPLICATIONS OF SOCIAL

NETWORKING SITES

One of your Company‟s sales supervisors, Debbie, has asked for guidance using Facebook as a legitimate business tool. Debbie wants to encourage her entire sales force to engage online by becoming “friends” on Facebook. What advice would you give her as a best practice for “friending”?

A) There are no hard and fast rules - anyone can friend anyone.

B) Supervisors should not make friend requests to direct reports.

C) Direct reports should not make friend requests to supervisors.

D) Colleagues should not friend other colleagues.

Manager Mistakes Regarding

Emails/Texts

• Disclosing frustration over legal issues

• Over-compensating for lack of

documentation

• Discussing performance problems

• Using red flag legal references

• Tolerating employee off color emails

• Discussing salary, bonus, promotions

• Sending p.m. emails to non-exempts

High Level Executive to

Recently Hired Administrative Assistant:

• “Wow. I never realized how big your

chest was.”

• “Would you flash me?”

• Employee, leaving office, “NO”

Later That Day….In A Text Message

• “Sorry if I misunderstood things – I would

never want you to feel uncomfortable.

You are super and I love having you here

– you fit so well into the little

dysfunctional company family. I really

hope I didn‟t make you feel

uncomfortable. Thanks. You are the

best!!!!”

Employee Text Message Response:

• “You are really nice…I just think it is best

to not continue the flirty stuff as you are

married and I admire that. You have two

kids, a beautiful wife and I am seeing

someone now too…I just do not want it to

be awkward.”

Later That Day…In a Text Message

• “I absolutely don‟t want awkward either.

We are both very lucky. Sometimes it is

stressful having the weight of 50 people‟s

families on your shoulders and a little

harmless fun makes a big difference in

relieving the stress – but it only works if it

is harmless and that‟s a two way street.”

Still Later That Day…In a Text

• “You are right….This has to stop and I

totally agree…

• However, if the opportunity presents

itself, could I get one last really really

good look at some point?”

• “TEXTUAL” HARASSMENT

Common Employee Social Media Errors

•Letting personal use interfere with work

•Not getting Company approval before using it to

conduct business

•Using Company name, trademark, logo without

prior approval

•Personal comments without a disclaimer

•Disclosing confidential information

•Just being “stupid”

“Seeing as I seem to be spending most of my time there, I

figured it would be „fun‟ to publish a photo of my desk at

work”

Be Careful What You Tweet

• Public Relations executive lands in Memphis and

posts on his Twitter account:

–“True confessions but I‟m in one of those towns

where I scratch my head and say „I would die if I

had to live here.‟”

• Memphis is home to FedEx, one of the executives

largest clients

• An individual offered a job at Cisco tweeted:

–“Cisco just offered me a job! Now I have to weigh

the utility of a fatty paycheck against the daily

commute to San Jose and hating the work.”

• Cisco employee response:

–“Who is the hiring manager? I‟m sure they would

love to know that you will hate the work. We here at

Cisco are versed in the Web.”

Be Careful…

Social Media Sites and Blogs

• Email or SNS exchanges are often written with a more casual

tone and content than a formal memo or letter

• However, the laws of harassment and discrimination do not

relax… ever

• Your questionable writing will end up in the wrong hands

• Deleting an email does not remove it completely from the

Internet

All Should be Advised to Consider

Implications BEFORE Hitting Send

• Would you say it if your spouse, significant other, child

or parent were present?

• Would you want the CEO to see it?

• Would you want to defend it in court, as an oversized

exhibit with a jury watching you?

PRIVACY ISSUES:

Brown-Criscuolo v. Wolfe

• What constitutes a “reasonable

expectation of privacy” to support a claim

of improper search under the Fourth

Amendment?

The Court‟s Decision….

• The District did not “routinely monitor” the

email accounts;

• The District provided employees with a

private password;

• The District did not access these files due

to disciplinary investigation or public

records request….

• REASONABLE EXPECTATION OF PRIVACY IN

HER WORK FILES EXISTED

Recent 2011 Cases on Privacy

If a party to a civil case posts information on

his/her Facebook page, and that

information appears to contradict

statements in discovery or testimony, the

party‟s Facebook page is discoverable.

Judge can order litigant to turn over

username and password to other party

Legalities of Background Checks

and References

• How can social networking sites be used to seek

information on a current or prospective

employee without inviting a lawsuit?

• How does the Fair Credit Reporting Act factor

in?

• Approximately 79% of hiring managers admit

that they use social networking sites to look for

job candidates‟ profiles.

What are the legal dangers in doing so?

INFORMATION MADE “PUBLIC” BY

SOCIAL NETWORKING SITES

• Academic history

• Personal Affiliations

• Hobbies/Social events

• Opinions/Political and charitable causes

• Height, weight, gender

• Illnesses/disabilities

• Sexual preferences

• Family members

• Religion

Additional Considerations

• Disparate Impact Claims

– Population is limited and highly selective

– Approx. 5% of LinkedIn users are black and

only 2% are Hispanic

– Users are generally white and age 20-40

• Record Keeping Issues

– OFCCP wants record trail for recruiting

– If no records…negative inference to jury

HOW FAR CAN YOU GO IN POLICING

“OFF DUTY” CONDUCT?

• 30 states and District of Columbia prohibit employers from discriminating against workers because they smoke or participate in other “lawful activities”

• General rule: If an employee‟s off-duty activity puts your company in legal or financial jeopardy, courts will be more inclined to let you regulate it.

1. Focus on the off-duty behavior‟s effect on job performance; identify a legitimate business reason

2. Avoid blanket restrictions against socializing with competitors; instead have a non-disclosure policy

3. Check your state‟s rules

4. Apply an even hand

PRECAUSTIONS IF USING SNS FOR

BACKGROUND/REFERENCE

• Inform applicants/employees of Internet

search and obtain written consent

• Adopt uniform guidelines

• Designate non-decision maker to perform

Internet screening

• Maintain records

• Must be job related

SOCIAL MEDIA IN HIRING

There are several open positions in your department. You instruct an employee to

identify and screen applicants using Facebook, MySpace, LinkedIn and Twitter to

determine the “best” prospects. Of the following concerns related to using social

media to screen potential hires, which do you believe may pose a legal liability for

the Company?

A) Information obtained from Facebook containing detailed and private information about

the applicant

B) Information obtained from Facebook suggesting that an applicant may be suffering

from a health condition and that information is the basis for the decision not to hire the

applicant

C) Information obtained from Facebook that shows an applicant using illegal drugs and

that information is the basis for the decision not to hire the applicant

D) Information about an applicant obtained from Facebook that may not be completely

accurate

E) None of the above because the information posted by the applicant is open to the

public and they should have no expectation of privacy

NLRB FILINGS 2011

• NLRA grants employees the right to

engage in protected concerted activity,

which includes the right to discuss wages,

benefits and other terms and conditions of

employment

• Employees do NOT have carte blanche

to defame, disparage or trash their

employers, managers, product or co-

workers

What is Protected Concerted

Activity

• Protected = related to the terms or

conditions of employment, unionization, or

an on-going labor dispute

• Concerted = with, or on the authority of,

other employees and not solely by and on

behalf of the employee himself

– Employees in a non-unionized workplace can

engage in protected, concerted activity!

– Must be conducted in a reasonable manner

and cannot overtly disparage the company

NLRB EXAMPLES

• Bartender‟s stepsister asks how night went

• He posts complaints on Facebook that he

had not received a raise in five years and

was required to do waitress work with no

tips

• Employer fires Bartender (via Facebook)

• Unhappy customer service employee

posts Facebook rants against employer

and assistant manager

• Facebook “friends” were co-workers and

several of them responded to his rants

• Company suspended him for one day and

warned of possible termination if behavior

continued

The Ultimate Driving Event

• BMW dealership planned event to introduce

redesigned Series 5; inviting customers

• During event, they served hot dogs, chips and

cookies.

• Some sales people objected that hot dogs were

not “up to par with BMW‟s luxury image”

• Several days after the event, one employee

posted the following on his Facebook page:

• “I was happy to see that the dealership went all

out for the most important launch of a new BMW

in years…the new 5 series…The small 8 oz

bags of chips, and the $2.00 cookie plate from

Sam‟s Club…but to top it all off…the Hot Dog

Cart. Where our clients could attain an over

cooked wiener and a stale bun….”

• ALJ: “Concerted” because two or more shared

the belief that hot dogs were inappropriate and

testimony revealed that they were truly

concerned of BMW image resulting in lower

sales and commissions

5 QUESTIONS TO ASK WHEN A

FACEBOOK POST STINGS

• Is it “protected concerted” activity?

• Is it discriminatory to trigger an obligation

by employer to act?

• What is the worker‟s position who posted?

• Is the conduct impacting the workplace?

• Is the conduct taking place on work time

with employer‟s resources?

“MySpace…Your Liability”

Tips for a Social Media Policy

• Rule #1: Employers have a duty to create

policies that prevent workplace harassment and

discrimination

• Employers must have a strong and effective

Social Media policy that advises employees that

ANY comments about the Company or co-

workers, even out of the work environment, may

result in harassment or insubordination resulting

in discipline up to and including termination

• Other risks: proprietary info, defamation

Crafting A Social Media Policy

• Define the technology and the problem

• Establish risk tolerances

• Create a policy outline

• How far do you want to reach?

• Should you permit social networking at work, at all?

• If prohibited, how will you monitor it?

• If permitted at work, will it be limited?

• Should employees have to identify with the Company when networking online?

• How do you define “appropriate business behavior?”

• How will this policy intersect with harassment, technology and confidentiality policies?

SAMPLE SOCIAL MEDIA POLICY

GUIDELINES

• Know and follow company conduct guidelines

• Employees are personally liable for content

• Identify self and role within company (if

discussing company matters)

– Make it clear that speaking for self, not company

• Use disclaimer

– “The postings on this site are my own and don‟t

necessarily represent the company‟s positions,

strategies or opinions”

• Respect copyright, fair use and disclosure laws

• Do not disclose confidential/proprietary info

• Do not cite or reference clients, partners or

suppliers without their approval

• Respect your audience

– Don‟t use ethnic slurs, personal insults, obscenity

• Keep company profile updated

– For presentation to colleagues and clients

• Don‟t forget your day job!

– On-line activities should not interfere with job or

commitments to customers

• No expectation of privacy!

DISCLAIMER

• The content contained in this presentation is general information and should not be construed as legal advice. It is not designed to be and should not be relied upon as your sole source of information when analyzing and resolving a specific legal issue. Each fact situation is different; the laws are constantly changing. If you have specific questions regarding a particular fact situation, you should consult with competent legal counsel.

Matthew R. Grabell, Esq.

201-488-6438

mgrabell.esq@employeerelationssolutions.net