Cherveny - Social media meets employment

Editor's Notes

1. 22% of employees visit social networking sites 5 or more times per week 53% of employees surveyed said that their social networking page is none of their employer’s business 27% said that they don’t consider the ethical consequences of posting comments, photos or video online 44% of employers admit to looking up online profiles of applicants
2. Does your policy allow your employees to post your company name?
3. Does your policy allow your employees to post your company name?
4. What information are employees posting on their on sites? Are they sharing copyrighted information? SOX – are employees posting insider info? New product info? Dilution of the brand? Brand association? ER may be liable for defamatory statements made by an employee if the employee had the apparent authority from the company to speak on its behalf (1) Did the post occur within the scope of employment; (2) did the EE intend to benefit the ER? (3) did the ER know or should have known about the posting?
5. How do you prove that you did not make a decision regarding an employee or applicant w/out taking into account protected status information discovered via social media? Develop policies and implement screening procedures Construct a “wall” between the decision maker and the “researcher” Filter information provided to the decision maker Blakey v. Continental Airlines – SC NJ ER had electronic bulletin board Against ee’s: defamation Against Continental: hostile work env. Bulletin board so closely related to workplace environment and beneficial to EEs If the ER had notice that the employees were engaged on a work related forum in retaliatory harassment, ER has a duty to remedy
6. Marshall – Myspace – posted pictures; refused to remove them; probationary employee; fired; had policies in place regarding use of photos and conduct/images that did not reflect well upon the district; sued for discrimination; policies were part of what saved the day – legitimate nondiscriminatory reason for termination City of Ontario v. Quon – SWAT SEXTING CASE City distributed 2 way pagers Had written policy limiting pager use Pagers not covered EE went over text limited – audited – discovered sexting Policy did not cover pages and EE had a reasonable expectation of privacy – 9 th Cir. No official texting policy SC heard Oral Arguments on April 19, 2010 Have you updated your policies to include new technology?
7. Marshall – Myspace – posted pictures; refused to remove them; probationary employee; fired; had policies in place regarding use of photos and conduct/images that did not reflect well upon the district; sued for discrimination; policies were part of what saved the day – legitimate nondiscriminatory reason for termination City of Ontario v. Quon – SWAT SEXTING CASE City distributed 2 way pagers Had written policy limiting pager use Pagers not covered EE went over text limited – audited – discovered sexting Policy did not cover pages and EE had a reasonable expectation of privacy – 9 th Cir. No official texting policy SC heard Oral Arguments on April 19, 2010 Have you updated your policies to include new technology?
8. Do your employees sign a confidentiality agreement? Does your handbook address confidentiality? Does it survive termination? EMPLOYER OBLIGATIONS TO KEEP EE INFORMATION PRIVATE HIPAA ADA Workers Compensation Fair Credit Reporting Act Apple iPhone left in a bar – Gizmodo bought it and posted pictures. Who’s getting fired? Who violated trade secret and other confidentiality provisions? But with Gizmodo’s report blowing up the Internet today, the cat is out of the bag. At the time of this writing, Gizmodo’s story alone is bordering on 2.5 million page views [Edit: it's now pushing 4 million pageviews as of early Tuesday morning]. Now word is leaking out that Gizmodo paid a cool 10 grand for the iPhone prototype, which all things considered, seems like a bargain given Apple’s typically tight rein on product leaks.
9. Who are his “friends”? Who can see this information?
10. Is his company public? Tradesecrets? Confidential/proprietary information?
11. Company brands can suffer – do you have controls in place to ensure that your trademarks and logos are not being misused?
12. Defamation has the following five elements: publication; falsity; actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; actual damages; and statement must be defamatory. Restatement (Second) of Torts §§ 558B Literally true statements can be defamatory where they create a false impression In defamation cases, the interest sought to be protected is the objective one of reputation, either economic, political, or personal, in the outside world. A communication can be considered defamatory if it prejudices the plaintiff in the eyes of a substantial and respectable minority of the community Horizon Realty – Court dismissed for vague Complaint – not sure if they will re-file – likely not.
13. Jones sent Read a pre-suit letter from Mr Jones, which asked him to agree that his comments were unfair. The letter told Read that he had seven days to respond, or he would face court action. Jones stated: "I am being punished on eBay because of this as sellers who have negative feedback appear lower down the screen in searches than other people. I'm losing money by the day and my business could go under because of it. I've been left with no option but to take legal action." Read stated: "I can't believe someone can be so petty. I only wanted to buy a phone. All I had done was left an honest opinion and everything I said was true. "I thought that was why the feedback service was there. It's not like I wrote anything malicious or nasty." An eBay spokeswoman explained that one negative comment was unlikely to affect Mr Jones's status on the site, which still rates him with a 98.7% positive feedback tally overall. Chris Matyszczyk a Technology writer from CNET said: "Surely Jones is seeking sympathy rather than justice. Because even if he somehow persuaded a court that he was right (which would seem a little unlikely), he will always be known as the scratchy phone seller who sues his customers." Earlier this year, eBay banned sellers from leaving feedback for their buyers, which means that Mr Jones was unable to retort to Mr Read's criticism. A Facebook group called "eBay Sellers Want Feedback Rights" is calling for this decision to be reversed, and eBay has admitted it needs to review its dispute-handling procedures.
14. One defense to defamation in Michigan is “opinion and fair comment privileges,” but a statement can still be considered defamatory if it implies underlying false facts. On the other hand, as noted by the Citizen Media Law Project: “If you state the facts on which you are basing your opinion, and the opinion you state could be reasonably drawn from those truthful facts, you will be protected even if your opinion turns out to be incorrect.” The case of T & J Towing v. Kurtz, if it comes to trial, could hinge on that last sentence. A court may look to the facts underlying Kurtz’s opinion of what happened in his situation in the framework of the “totality of the circumstances surrounding the statement and its publication to determine how a reasonable person would view the statement.”
15. Insider trading is the trading of a corporation's stock or other securities (e.g. bonds or stock options) by individuals with potential access to non-public information about the company. In most countries, trading by corporate insiders such as officers, key employees, directors, and large shareholders may be legal, if this trading is done in a way that does not take advantage of non-public information. However, the term is frequently used to refer to a practice in which an insider or a related party trades based on material non-public information obtained during the performance of the insider's duties at the corporation, or otherwise in breach of a fiduciary or other relationship of trust and confidence or where the non-public information was misappropriated from the company It is the trading that takes place when those privileged with confidential information about important events use the special advantage of that knowledge to reap profits or avoid losses on the stock market, to the detriment of the source of the information and to the typical investors who buy or sell their stock without the advantage of "inside" information Insider trading occurs when someone makes an investment decision based on information that is not available to the general public. In some cases, the information allows them to profit, in others, avoid a loss.
16. Apparent authority to speak on behalf of the lender - Tweet
17. Employees who use social media to make statements about their employer’s products may create unintended legal liability for their employer if a consumer later claims to have been mislead into purchasing an allegedly dangerous or defective product. Whole Foods CEO wrote anonymous online attacks of Wild Oats Markets From 1999 – 2006 under alias Said company would fall into bankruptcy Whole Food announced it was buying Wild Oats FTC filed a lawsuit to block the sale – antitrust grounds Then the CEO wrote blogs bashing the FTC MARCH 2009 – Settlement: Whole Foods agreed to divest itself of 31 Wild Oats stores in 12 states, including 19 stores that already have been closed, and one Whole Foods store. Whole Foods also agreed to relinquish the rights to the Wild Oats brand, which could be sold to a potential competitor. In exchange, the FTC will drop its legal bid to undo the merger
18. Are blogs and other forms of social media a new form of a “concerted activity” under the NLRA? Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3). Such as: • Forming or attempting to form a union among the employees of a company. The NLRB is on Twitter. ;) Prohibition of Employer Surveillance – merely reading employee blog is not enough but regularly recoridng the material might
19. Is answering a Tweet, posting a blog, or responding to a FB message part of your employee’s hours worked for purposes of overtime? No statutory definition of “work” - originally stated that employees subject to the act must be paid for all time spent in ‘‘ physical or mental exertion (whether burdensome or not) con-trolled or required by the employer and pursued necessarily and primarily for the benefit of the employer of his business .’’ ( Tennessee Coal, Iron & Railroad Co. v. Muscoda Local No. 123 , 321 U. S. 590 (1944)) Subsequently, the Court ruled that there need be no exertion at all and that all hours are hours worked which the employee is required to give his employer , that ‘‘an employer, if he chooses, may hire a man to do nothing, or to do nothing but wait for some-thing to happen. CFR 785.5 Work = broad definition
20. Marshall – fire fighter case Do your employees have an expectation of privacy? Proper notice trumps an employee’s reasonable expectation of privacy Electronic communications policy Use of company resources to access social media Reserve the right to monitor Clearly state prohibited conduct and consequences Prohibit use of company images/logos Require express written permission to blog/post on behalf of employer No anonymous blogging/posting about the company Duty of loyalty exists even beyond working hours Consider rules regarding supervisors “friending” subordinates