Social Media Why Should You Care?

Carlos S. Arvalo Zukowski, Rogers, Flood & McArdle50 Virginia St.Crystal Lake, IL 60014815/459-2050carevalo@zrfmlaw.com www.zrfmlaw.comStateline SHRMSeptember 8, 2011

What is Social Media?Forms of electronic communication (as Web sites for social networking and microblogging) through which users create online communities to share information, ideas, personal messages, and other content (as videos). Merriam-Webster 2011

Types of Social MediaFacebookTwitterLinkedInBlogging

FacebookMore than 750 million active users 50% of users log on to Facebook in any given day

Average user has 130 friends

People spend over 700 billion minutes per month on Facebook

Facebook (cont.)There are more than 250 million active users currently accessing Facebook through their mobile devices.

People that use Facebook on their mobile devices are twice as active on Facebook than non-mobile users.

There are more than 200 mobile operators in 60 countries working to deploy and promote Facebook mobile products.

Twitter

Number of new accounts created on March 12, 2011: 572,000.

Average number of new accounts per day over the last month: 460,000.

Increase in number of mobile users over the past year: 182%.

Twitter (cont.)The average number of Tweets people sent per day, one year ago: 50 million.

The average number of Tweets people sent per day, in the last month: 140 million.

Tweets sent on March 11, 2011: 177 million.

Tweets per second (TPS) when Michael Jackson died on June 25, 2009 (a record at that time): 456.

LinkedInAs of August 4, 2011, LinkedIn operates the worlds largest professional network on the Internet with more than 120 million members in over 200 countries and territories.

More than half of LinkedIn members are currently located outside of the United States.

There were nearly two billion people searches on LinkedIn in 2010.

LinkedIn (cont.)As of June 30, 2011 (the end of the second quarter), LinkedIn counts executives from all 2011 Fortune 500 companies as members; its corporate hiring tools are reportedly used by 75 of the Fortune 100 companies.

More than 2 million companies have LinkedIn Company Pages.

LinkedIn is currently available in nine languages: English, French, German, Italian, Portuguese, Spanish, Russian, Turkish and Romanian.

BloggingThere have been more than 133,000,000 blogs indexed by Technorati since 2002.According to Universal McCann (now UM) 77% of Internet users read blogs. The popularity of blogging is split evenly among both men and women with 50.9% of bloggers being female and 49.1% being male.The United States has the largest share of bloggers with 29.22% of all bloggers.

Blogging (cont.)Hobbyists (non-income bloggers) seem to be blogging less and part-timers, professionals, and self-employed bloggers are blogging more than ever.

15% of Bloggers spend 10 or more hours each week blogging.

One in five Bloggers report updating on a daily basis.

The most common rate of updating is 2-3 times per week.

Social Media

So should we care?

Social Media (cont.)

Yes

The Good... If used properly, it is an excellent marketing tool.It enhances access to potential customers, target audience.It allows for optimal communication between employees, customers and public.It fosters stronger relationships.It allows users to engage and remain competitive in todays global market.

The Bad

You can be sued

The Badfor EmployersIf not handled properly, there may be problems related to:

Recruitment

Employee misconduct using social media

Free Speech

Access to Employees Use of Social Media

Employee Discipline Based on Use of Social Media

RecruitmentPre-screening of employees by conducting internet search.Limiting recruitment efforts to internet.Failure to notify candidate of social media/internet search.Failure to verify information obtained in internet/social media.Decision making on social media information related to religious affiliation, age, ethnic, racial and sexual orientation (Illinois).

Employee MisconductPotential for harassment using social media.Specific individuals can be targeted.It can be general in nature, intensifying conduct that creates a hostile work environment.Cyber-bullying using social media.On duty/off duty is irrelevant.

Free SpeechTypically, a concern for public sector employers.Claims hinge on whether speech on matters of public concern are outside the scope of employment.Spanierman v. Hughes, a Connecticut case involving a non-tenured teacher fired for posting an Iraq war related poem. School prevailed because there were multiple inappropriate comments, pictures and communications between the teacher and students.

Access to Employees Social MediaPrimary consideration is the employees expectation of privacy.Expectation of privacy depends on who owns or pays for the equipment used, the nature of the communication and how it relates to the employees job.Does employer have a Social Media Policy in place?

City of Ontario v. QuonSupreme Court case decided in June 2010.City issued pagers to police officers with usage limits, which Sgt. Quon and other officers exceeded.Police Chief investigated whether limits were too low and to determine costs.Sgt. Quons usage consisted of non-work related messages of a sexually explicit nature.Sgt. Quon was disciplined following an internal affairs investigation.

City of Ontario v. Quon (cont.)City had written computer, internet and email usage policy specifying that City reserves the right to monitor and log all network activitywith or without notice and that users should have no expectation of privacy when using these resources.Sgt. Quon claimed the City had violated his 4th Amendment rights of protection against unreasonable search and seizure.Supreme Court eventually heard the case and applied a two step analysis: 1) Does the employee have a reasonable expectation of privacy; and 2) Was the search reasonable under all circumstances.

City of Ontario v. Quon (cont.)The Court found that search was motivated by a legitimate work-related purpose and was not excessive, and as a result, it was reasonable.

However, the Court hesitated to find any reasonable expectation of privacy for Sgt. Quon noting that, given the dynamic and emerging technology of communication and information transmission, there may be far too many implications for future cases that cannot be predicted.

City of Ontario v. Quon (cont.)Impact of City of Ontario?

It is not a general rule, each case will be decided on a case-by-case basis.

Ontario is a public sector case.

It underscore importance of work policies and notification to employees to ensure there is no expectation of privacy.

Employee DisciplineUtilize concept of just cause

There must be a reasonable rule in placeThere must be notice to employees of possible consequencesThere must be an investigationInvestigation must be fairThere has to be proofDisciplinary action must be equally and consistently appliedDisciplinary action must be appropriate

Social Media PolicyAdopt a social media policy or revise existing computer usage policies to include social media.Policy sufficiently broad to address off-duty and personal use.Notification to employees of policy and no expectation of privacy.Notification to employees of company monitoring employee social media practices.

Social Media Policy (cont.)Define scope of policy and what is prohibited:

Company confidentialityUse of disclaimersUse of company propertySocial media usage during work hoursSocial media practices off dutyRules of conduct apply to social media usageIdentify consequences of violation of social media policy, including termination.

QUESTIONS?

THANK YOU