Collision Of My Space, Your Space And Our Space 3 11 11

Presented by: D. Albert Brannen Phone: (404) 240-4235 Email: dabrannen@laborlawyers.com SOCIAL MEDIA IN THE WORKPLACE THE COLLISION OF MYSPACE, YOUR SPACE AND OUR SPACE

Explosion of Social Networking LinkedIn: “ Professional” site More than 80 million users Projected 2010 revenues to be $110 M Average user is 41, with annual income of $110,000 ©Copyright 2011 All rights Reserved

Explosion of Social Networking Other sites: Windows Live Spaces 120 million Habbo 117 million Friendster 90 million Flixster 63 million Classmates 50 million MyLife 50 million Bebo 40 million Tagged 10 million http://en.wikipedia.org/wiki/List_of_social_networking_websites ©Copyright 2011 All rights Reserved

Interesting Statistics Relating To Employment 42% of companies say layoffs have increased data “leakage” 34% of companies were harmed by sensitive info release 31% of companies terminated someone for e-mail violations 24% of companies say e-mail subpoenaed 8% terminated someone for use of social networking sites Proofpoint’s 2009 Study on Outbound e-mail and Data Loss Prevention ©Copyright 2011 All rights Reserved

Employment Screening Tool? According to Career Builder.com survey, nearly half (45%) of US employers report using social networking sites to dig up information about job candidates ©Copyright 2011 All rights Reserved

Conflict in the Workplace 60% of employees believe their online activities are none of their employer’s business 50% of employers believe they have a right to monitor social networking sites ©Copyright 2011 All rights Reserved

Conflict in the Workplace 75% of employees say their employer doesn’t have a social networking policy But, 50% of employers report they have a social networking policy ©Copyright 2011 All rights Reserved

A “Family Emergency” http://www.switched.com/2007/11/13/lying-male-intern-busted-in-a-dress-on-facebook ©Copyright 2011 All rights Reserved Kevin called in and reported that he would miss work due to a ‘family emergency.” A few days later, he posts his picture from a Halloween party.

Runnin’ Down the Boss Philadelphia Eagles staffer Dan was fired after remarking on his Facebook page about the firing of star safety Brian Dawkins: “ Dan is [expletive] devastated about Dawkins signing with Denver. . . Dam Eagles R Retarded!!” http://pacdudegames.com/blog/dan-leone-the-philadelphia-eagles-and-the-art-of-tact/ ©Copyright 2011 All rights Reserved

Pittsburgh Pirate Mascot “Outta’ Here!” Andrew, one of 18 men who take turns posing as pierogies in a race after the fifth inning of every home game, was dismissed by the team because he posted disparaging remarks about the Pirates on his Facebook page . ©Copyright 2011 All rights Reserved

Joshua was sentenced to 2 years in prison for seriously injuring a young woman in a drunk driving incident. The proof? Pictures showing Lipton at a party dressed in a jailbird costume 3 weeks after the crash. Someone posted them on Facebook, and that offered evidence for the prosecutor handling his drunk-driving case. “ Jailbird” Joshua Lipton ©Copyright 2011 All rights Reserved

Two employees in Conover, NC filmed themselves doing “disgusting” things to food that they claimed was going out to customers and posted it on YouTube. The 2 employees were identified, fired and arrested. Public Relations Nightmares ©Copyright 2011 All rights Reserved

Public Relations Nightmares An employee took a bath in the burger chain's sink. Someone filmed it and posted the video to MySpace. Local Health Department authorities were not amused. ©Copyright 2011 All rights Reserved

Using The Internet Can Be Risky State and federal computer crimes laws Common law invasion of privacy (or other torts) Fair Credit Reporting Act Stored Communications Act Wiretap Act Title VII and other discrimination laws GINA NLRA ©Copyright 2011 All rights Reserved

Computer Crimes The Fulton County Schools Policy says: ©Copyright 2011 All rights Reserved “ Failure to follow these guidelines can violate the Official Code of Georgia, OCGA, Codes 16-9-90, 16-9-91, 16-9-92, and 16-9-93, as well as United States Public Law 106-554, known as the Children's Internet Protection Act. Such actions can also lead to disciplinary actions, up to and including termination of employment or contract with FCS and criminal prosecution.”

State Privacy-Related Tort Claims Key to tort expectation is proof of expectation of privacy Establishment of a policy regarding use of company-owned devices is critical ©Copyright 2011 All rights Reserved

State Privacy-Related Tort Claims State laws may require notice of monitoring Tort action for violation of privacy rights Intrusion into privacy of another Appropriation of one’s name or likeness Wrongful publication of private facts False light publicity ©Copyright 2011 All rights Reserved

Employees set up password-protected blog to complain about management. It contained confidential information. Employer asked employee with access to give up her password. Management took action against employees based on the blog content and employees sued. Jury found for employees Pietrylo, et al. v. Hillstone Restaurant Group d/b/a Houston’s Privacy Violations ©Copyright 2011 All rights Reserved

Stored Communications Act Federal statute that prohibits intentional, unauthorized access to private electronic communications such as Facebook or Hotmail Creates privacy expectation in private electronic communications ©Copyright 2011 All rights Reserved

Stored Communications Act Pure Power Bootcamp Employer logged into Hotmail account employee had used during work hours and on work computer Employee left username and password filed on computer Court found violation of SCA ©Copyright 2011 All rights Reserved

Evidence In A Title VII Case Manager wrote: “ What’s wrong with women these days?” “ Chicks seem to have more issues these days than Jet Magazine and keep up more drama than daytime TV and Jerry Springer combined.” Plaintiff used comments to show discriminatory animus Derrick v. Met. Gov’t. of Nashville & Davidson ©Copyright 2011 All rights Reserved

GINA Prohibits Discrimination Acquisition Final regulations specifically prohibit systematic internet searches that might acquire genetic info Disclosure Derrick v. Met. Gov’t. of Nashville & Davidson ©Copyright 2011 All rights Reserved

Discipline may be inappropriate if employees are engaging in protected activity, such as Sharing information about their pay Complaining about employer policies or managers Displaying union-related insignias/logos Expressing support for a union Attempting to organize a union NLRA Protects Employees Engaged In “Protected Concerted Activities” ©Copyright 2011 All rights Reserved

An unfair labor practice was filed against a bus company alleging the company maintained and enforced an overbroad communication policy. The policy included: Confidentiality provision Disparagement provision Prohibition on disruption of workplace Prohibition on making demeaning/derogatory statements about company, employees, or customers NLRB’s Protections Student Transportation Of America ©Copyright 2011 All rights Reserved

NRLB Advice Memorandum of December 4, 2009: Sears Holdings “ Carefully drafted” social media policy does not violate employees’ rights (under the National Labor Relations Act) NLRB’s 2009 Stance On Employers’ Social Media Policies ©Copyright 2011 All rights Reserved

Facebook Case An employee was fired for: Calling her boss a “scumbag” and Writing “love how the Company allows a 17 year old to be a supervisor” NLRB issued a complaint on October 27,2010 American Medical Response of Connecticut NLRB’s Current Stance On Employers’ Social Media Policies ©Copyright 2011 All rights Reserved

Facebook Case Settled February 7, 2011 Employer agreed to: Revise its Internet policy to allow employees to discuss wages, hours and working conditions Not discipline employees for engaging in such discussions Pay victim American Medical Response of Connecticut (October 27, 2010) NLRB’s Current Stance On Employers’ Social Media Policies ©Copyright 2011 All rights Reserved

May be expanded by the current Labor Board Examples Using the employer’s e-mail system Asking for a witness in investigatory interviews Expressing “disloyalty” Attempts to get customer support of employee causes NLRB Protections For Employees ©Copyright 2011 All rights Reserved

Freedom of speech, limited to matters of public concern Right to be free from unlawful search and seizure Due process rights Property rights in their jobs Georgia Fair Dismissal Act Special Rules Apply To Public Employers ©Copyright 2011 All rights Reserved

Practical Guidelines Many different laws apply Be real: expect employees to use these sites Beware what you learn: ignorance can be helpful Limit searches to “professional” sites Be consistent Publish your policies Train your legal representatives Educate employees Monitor the web about your company Follow new developments ©Copyright 2011 All rights Reserved

Policy on Social Networking Sites Remind employees: online sites are in the public domain off-duty actions can result in discharge be respectful use privacy controls productivity counts Require compliance with existing policies Prohibit defamation and fraud Prohibit references to customers Ban use of protected logos or trademarks Require employees to use disclaimers ©Copyright 2011 All rights Reserved

Other Related Policies EEO & No Harassment Medical Information Electronic Communications Confidential Information & Trade Secrets Cell Phones Use of Blackberries or PDAs ©Copyright 2011 All rights Reserved

Tips For Managers Don’t become “friends” with employees Don’t reveal anything you wouldn’t say or post in public Don’t engage in fraud (“fake” friend requests or passwords) Use privacy controls to manage flow of information Web content can be false Read what you sign in those “disclaimers” ©Copyright 2011 All rights Reserved

Follow New Developments AMR Facebook case Ontario, Cal. V. Quon, June 17, 2010 U.S. Supreme Court gives public employers the right to search an employee’s text messages for reasonable cause. ©Copyright 2011 All rights Reserved

Final Questions? D. Albert Brannen Phone: (404) 240-4235 Email: dabrannen@laborlawyers.com Presented by:

Collision Of My Space, Your Space And Our Space 3 11 11

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Collision Of My Space, Your Space And Our Space 3 11 11