omg! what's up with social networking in the workplace?

OMG! WHAT’S UP WITH SOCIAL NETWORKING IN THE WORKPLACE?

Audrey E. [email protected]

600 Banner Place Tower12770 Coit Road

Dallas, Texas 75251T: (972) 628-3661F: (972) 628-3616

Copyright 2010 Munck Carter, LLP

DALLAS BAR ASSOCIATION – COMPUTER LAW

SECTION MEETING

FEBRUARY 28, 2011

Copyright 2008 Munck Carter P.C.

ROAD MAP________ _

• What is social networking? • Scope of usage• Boons

•Recruitment•Engagement•Marketing

• Banes• Practical• Legal

• Tips

r P.C.

WHAT IS SOCIAL NETWORKING?_ _

• Occurs when individuals, groups of individuals or organizations utilize various media to communicate a message to others• Examples: email blasts, blogging, microblogging(Twitter), Facebook, MySpace, LinkedIn, Plaxo, YouTube

HOW MANY OF US ARE ON FACEBOOK?____________________________________________


• 500 million users.

• 50% of active users log onto Facebook in any given day.

• The average Facebook user has 130 friends.

• Users spend 700 billion minutes per month on Facebook.

Source: http://www.facebook.com/press/info.php?statistics

http://www.facebook.com/press/info.php?statistics

http://www.facebook.com/press/info.php?statistics

WHEN ARE WE USING FACEBOOK?___________________________________________


A recent study measured “click through” rates of Facebook wall posts. It found that Tuesday, followed by Wednesday and Monday were the busiest days for Facebook wall activity.

Source: http://vitrue.com/blog/2009/09/08/vitrue-srm-findings-social-click-through-rates-for-facebook-are-highest-on-tuesdays/

http://vitrue.com/blog/2009/09/08/vitrue-srm-findings-social-click-through-rates-for-facebook-are-highest-on-tuesdays/


























HOW MUCH DO WE E-MAIL?____________________________________________


• An estimated 247 billion e-mails are sent eachday (80% are spam or viruses).

• 2.8 million e-mails sent every second.

• 1.4 billion e-mail users.

Source: http://email.about.com/od/emailtrivia/f/emails_per_day.htm

http://email.about.com/od/emailtrivia/f/emails_per_day.htm

http://email.about.com/od/emailtrivia/f/emails_per_day.htm


BOONS: RECRUITMENT____ _

• 2009 CareerBuilder survey - 45% of employers using social media to screen applicants•2009 MicroSoft survey

•70% rejected applicant based on findings•35% rejected applicant based on membership in certain groups

•2010 – German law introduced to regulate employer’s use of social media to investigate applicants


BOONS: ENGAGEMENT____ _

• Tool for knowledge sharing• Tool for innovation sharing• Example: Using wiki as tool for employee input into new or revised employee handbook policies• Examples outside of workplace

• Marches in Dallas in response to anti-immigration legislation in AZ• Citizen uprisings in Tunisia, Egypt & Libya


BOONS: MARKETING______ _

• Increased hiring of social media directors by companies• Expansive reach for low cost, to create brand awareness• Example of Facebook page and collecting “likes”• Example of Twitter to promote pop-up retail stores


BANES: PRACTICAL ________ _

• Loss of productivity (cyberslacking)• Attacks (cybersmear)• Harassment• PR Disasters• Intro of worms, viruses and code designed to steal data and disrupt operations

Productivity Buster

www.virtualpuppy.com

www.virtualkitty.com

Log on & play with your adopted virtual pet

Adoption process asks for a URL as “emergency” default, in case you need to look like you are working

http://www.virtualpuppy.com/

http://www.virtualkitty.com/

WHAT ARE YOUR EMPLOYEES DOING ON FACEBOOK?


In 2008, 13 employees of Virgin Airlines were fired when Virgin learned that the employees used Facebook to post negative comments about the airline and its passengers.

The airline commented that the employees’ posts “brought the company into disrepute.”

Source: http://news.bbc.co.uk/2/hi/7703129.stm

http://news.bbc.co.uk/2/hi/7703129.stm

http://news.bbc.co.uk/2/hi/7703129.stm

STOPPING ANONYMOUS POSTINGS THAT

DAMAGE AN EMPLOYER’S REPUTATION

_________________________________

Under Texas Rule of Civil Procedure 202, you may ask a court to allow for depositions before filing a lawsuit in certain situations:

1. To obtain a person’s testimony for use in an anticipated lawsuit; or

2. To investigate a potential claim or suit.

Rule 202 also allows employers to investigate the true identity of “John Doe” bloggers!!



BANES: HARASSMENT _

• Former ee posts bogus help-wanted ad on social networking site• Er is inundated with applicants’ emails and calls• Former ee probably didn’t know on-line harassment is 3rd degree felony offense in Texas since 9-1-09

PR DISASTER


VIDEO: http://www.kvue.com/home/Pizza-Hut-employees-fired-over-lewd-pictures-101027539.html

Source: http://www.khou.com/news/texas-news/Pizza-Hut-employees-fired-over-lewd-pictures-licking-utensils-101080699.html

http://www.kvue.com/home/Pizza-Hut-employees-fired-over-lewd-pictures-101027539.html
















http://www.khou.com/news/texas-news/Pizza-Hut-employees-fired-over-lewd-pictures-licking-utensils-101080699.html























BANES: LEGAL________ _

• Invasion of privacy• Disclosure of confidential information• False or misleading advertising• Harassment and discrimination• Defamation• Whistleblower protection• Protected concerted activity• Off duty legal conduct • Negligence• Ethics

ELECTRONIC COMMUNICATIONS

PRIVACY ACT (ECPA) SUMMARY

________________________________________


• 18 U.S.C. 2510, et seq.

• Title I – prohibits intentional interception of any wire, oral or electronic communication. 18 U.S.C. 2511(1)(a). Amendment to the Wiretap Act.

• Title II – prohibits intentional, unauthorized access of an electronic communication while it is in electronic storage. 18 U.S.C. 270(a)(1). Also called the Stored Communications Act (SCA).

ECPA___________________________________


“We observe that until Congress brings the laws in linewith modern technology, protection of the Internet andwebsites … will remain a confusing and uncertain area ofthe law.”

Konop v. Hawaiian Airlines, Inc. 302 F.3d 868, 874 (9th Cir. 2002).

ECPA – TITLE I___________________________________


• Prohibits the interception of e-mails or other forms of electronic communication.

• Intercept = “the aural or other acquisition of the contents of… wire, electronic or oral communications through the use of any electronic mechanical or other device.” 18 U.S.C. 2510(4).

• Intercept = “to stop, seize, or interrupt in progress or course before arrival.”*

*Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 878 -879 (9th Cir. 2002) (citing Webster's Ninth New Collegiate Dictionary 630 (1985)).

ECPA – TITLE I

___________________________________


• INTERCEPTION MUST BE CONTEMPORANEOUS WITH TRANSMISSION.

• “The person intercepting must access the communication while it is actually in the process of traveling to its destination.”*

• Does not include e-mails or other electronic communication that is already stored on company server.

• Congress did not intend for “intercept” in Federal Wiretap Act to apply to “electronic communication” when those communications are in “electronic storage.” **

* Borninski v. Williamson, No. 3:02CV1014-L, 2005 WL 1206872 at *10 (N.D. Tex. May 17, 2005) (quoting 18 U.S.C. 2510).

**Steve Jackson Games, Inc. v. U.S. Secret Service, 36 F.3d 457 (5th Cir. 1994).

ECPA – TITLE II___________________________________


Prohibits the access of e-mails and other electroniccommunication in electronic storage.

Under ECPA, it is a violation if an employer “intentionallyaccesses without authorization a facility through which anelectronic communication service is provided … andthereby obtains, alters, or prevents authorized access to awire or electronic communication while it is in electronicstorage in such system….” 18 U.S.C. 2701(a)(1).

ECPA – CIVIL REMEDIES 18 U.S.C. 2520 __________________________________

• If a party is found liable under the ECPA, a court can assess as damages the greater of:

• Actual damages suffered by the plaintiff plus any profits made as a result of the violation; or

• Statutory damages – the greater of:

• $100 per day for each day of violation; or

• $10,000


ECPA – CRIMINAL PENALTIES

18 U.S.C. 2511(4)__________________________________

• Criminal penalties include:

• Not more than five years in prison, • A fine, or• Both.


PRIVACY IN A NUTSHELL


• Does employee have a reasonable

expectation of privacy?

• Does employer have legitimate

reason for the search?

• Is the search excessively intrusive

or reasonably tailored?


BANES: INVASION OF PRIVACY _

• Pietrylo v. Hillstone Restaurant Group dbaHouston’s (D.N.J. Sept. 2009)• Waiters have password protected chat room on MySpace• Mgmt accesses site and fires ees, based on content• Waiters claim SCA + state wiretap law violation . . . And win. Plus punitive damages based on jury finding of maliciousness



• Pure Power Boot Camp v. Warrior Fitness Boot Camp (S.D.N.Y. 2010)• PPBC ees set up competing business• PPBC owner opens former ee’spersonal email account and finds proof of stolen customers, copied docs• WFBC sues under SCA and wins, even absent proof of damages; further, emails PPBC discovered are inadmissible



• City of Ontario v. Quon (U.S. June 2010)• SWAT officer “sexting” via agency-issued pager• Er reviews text transcripts provided by wireless provider, to evaluate usage/scope of contract• Ee disciplined & sues er and Arch Wireless• S Ct found City “did not necessarily” violate ee’s4th amendment rights & er’s actions were reasonable because review done to determine if contractual limit on texts should be increased to avoid ee paying overages on work-related comms

ONLINE PRIVACY IN THE WORKPLACE

____________________________________________


Source: Searcy, Dionne, Some courts raise bar on reading employee email, The Wall Street Journal, page A31, found online at http://online.wsj.com/article/SB125859862658454923.html.

http://online.wsj.com/article/SB125859862658454923.html

http://online.wsj.com/article/SB125859862658454923.html


BANES: DISCLOSURE_______ _

• Theft/loss of trade secrets in violation of common law, statute and/or employment agreements, policies• Violation of securities laws via disclosure of material nonpublic information


BANES: ENDORSEMENTS_____ _

• Part 255.5 of FTC’s Guides Concerning the Use of Endorsements and Testimonials in Advertising (eff. 12-1-09)• Bloggers must disclose any material connection between themselves and the product/service described in a posting• FTC not likely to enforce if “rogue” employee posts w/o disclosure of connection but will consider if the er had appropriate procedures


BANES: EEO VIOLATIONS____ _

• Federal statutes prohibit discrimination, harassment and retaliation in employment when based on individual’s protected status

•Title VII – sex, race, color, national origin, religion•ADEA – age (40 or older)•ADA – qualifying disability


BANES: WHISTLEBLOWERS__ _

• Sarbanes Oxley• Rewards increased under Dodd-Frank Reform and Consumer Protection Act• Old rule – 10% of penalty• New rule – 30% of penalty

• OSHA• Anti-retaliation for reporting violations of various federal employment statutes


BANES: NLRA_____ _

• Section 7 protects employees’ concerted activities• Register-Guard case found inconsistent application of “no personal use” email policy resulted in unfair labor practice (“ULP”)• American Medical Response of CT case was settled; issue was overbroad social networking policy as ULP


BANES: LEGAL CONDUCT _

• Some states prohibit er punishment of eesfor legal conduct and/or use of lawful products that occurs off the er’s premises and during nonworking hours• Some are narrowly drafted (e.g., “smoking” in approx. 17 states)• Some are broad (e.g., “any lawful activity” in

CA, CO, NY and ND)


BANES: NEGLIGENCE/PORN_ _

• Doe v. XYC Corp (NJ Super Ct 12-27-05)•Ee warned about accessing porn at work• Folder at work had 70 images of child porn, including surreptitious nude & semi-nude pics of his 10-year old step-daughter• Daughter sues er for negligence• Court held that er had legal duty to act by firing ee and/or notifying law enforcement• MSJ overturned; issue of step-daughter’s damages left open; parties settled


BANES: ETHICS_____ _

• NY State Bar Committee on Professional Ethics OK’d attorneys accessing publicly available pages to obtain evidence and impeachment material, but banned use of deceptive means to obtain the information (e.g., friending, directing a 3rd party to friend someone)

TIPS ON AVOIDING VIOLATIONS OF THE ECPA_________________________________

• Require employees to sign an electronic communications usage policy in which they consent to employer monitoring of all electronic communications sent on employer computers/network.

• Instruct management employees not to access an employee’s computer without HR approval.

• Conduct only reasonable searches based on good faith concern.


TIPS FOR AN ELECTRONIC COMMUNICATIONS POLICY____________________________________________________

• Broad list of systems/devices covered by policy

• No expectation of privacy; notice of monitoring

• Distinguish between acceptable and unacceptable types of communications; use examples

• Address FTC guidance on endorsements

• Incorporate other polices which apply to electronic communications (e.g., EEO, confidentiality)

• Address copyrights and licensing


MANPOWER STUDY:EMPLOYER PERSPECTIVES ON SOCIAL NETWORKING

____________________________________________


In which of these areas has your social networking policy been effective?

• Avoiding productivity loss – 65%• Protecting intellectual property/proprietary information – 39%• Protecting reputation – 32%• Helping recruitment efforts – 18%• Don’t know – 2%• Our policy has not been effective – 1%

Source: Employer Perspectives on Social Networking: Global Key Findings, A Manpower Study, found online at

http://files.shareholder.com/downloads/MAN/1038944512x0x350040/4e59cf4b-1d29-470d-922f-

062e815c629e/Employer_Perspectives_on_Social_Networking_Survey.pdf

*Data for employers in the Americas.

http://files.shareholder.com/downloads/MAN/1038944512x0x350040/4e59cf4b-1d29-470d-922f-062e815c629e/Employer_Perspectives_on_Social_Networking_Survey.pdf











www.enronemail.com – Keyword flagging service

Thank you.

AUDREY E. MROSS600 BANNER PLACE TOWER

12770 COIT ROADDALLAS, TEXAS 75251

T: (972) 628-3661 F: (972) 628-3616EMAIL: [email protected]


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