BLOGS, SOCIAL NETWORKING & VIRTUAL WORLDS: A BRAVE NEW WORKPLACE

1. BLOGS, SOCIAL NETWORKING & VIRTUAL WORLDS:A BRAVE NEW WORKPLACE Presented By: Tom Farr Ogletree Deakins tom.farr@ogletreedeakins.com

2. What’s Out There? • Social Networking Sites: • Facebook, MySpace, Friendster • Twitter, Spokeo, MyLife • Classmates.com, YouTube • Web Logs – “Blogs” • a personal online journal that is frequently updated, intended for general public consumption and often encourages comments or discussions • Professional Networking Sites: • Plaxo • LinkedIn

3. Just How Big is Social Networking? • Facebook now has 500 million active users worldwide who spend, on average, more than 55 minutes on Facebook each day • MySpace has 100 million active users, although it is in decline, losing ground to Facebook • Twitter claims to have 175 million users • Linkedin has 100 million users • 70 Million Blogs, 175,000 Blogs Created Daily

4. Headline News – Diary of a Fired Flight Attendant • Ellen Simonetti, a Delta Airlines flight attendant, was fired for her blog, Diary of a Flight Attendant (now called Diary of a Fired Flight Attendant). • Delta became aware of her blog with “inappropriate” pictures, including two of her in a Delta uniform.

7. Simonetti Strikes Back! • After Delta terminated her employment, Simonetti learned that other male employees posted similar pictures of themselves on social media sites in uniform • She filed suit against Delta alleging disparate treatment based on sex • The case was never adjudicated because Delta filed bankruptcy shortly after Simonetti filed suit

8. Headline News – “Cisco Fatty” • An applicant, immediately after being 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.” • A Cisco employee responded: “Who is the hiring manager? I’m sure they would love to know that you will hate work. We here at Cisco are versed in the Web.” • This individual was not hired by Cisco.

9. Headline News – Teachers’ Tirades • A high school teacher in Pennsylvania was suspended after she complained on Facebook that her students were “rude, disengaged, lazy whiners” • A first-grade teacher in Paterson, New Jersey was suspended after posting on Facebook that she felt like a warden overseeing future criminals

10. Headline News – The Fairy Intern • On October 31, an intern e-mailed his employer that he could not come to work as he needed to get to NY immediately for a family emergency. • Instead, he attended a Halloween party, posting on his Facebook page a dated picture of himself dressed as a fairy. • The picture was promptly noted by his bosses, distributed around the office along with an e-mail thanking him for the notice, hoping everything was ok and adding “…nice wand.” • He was fired for lying.

11. Headline News – Microsoft • A Microsoft employee posted a photo to his weblog of pallets of new Apple computers on the Microsoft loading dock with the caption “It looks like somebody over in Microsoft land is getting some new toys.” • Microsoft fired him claiming he was a security risk.

12. Headline News – Boss Bashing • An employee was fired for posting on Facebook that she hated her job and that her boss was a “total pervvy wanker” and always made her do “shit stuff” • Unfortunately, the employee forgot that she had previously “friended” her boss • The boss proceeded to terminate her via Facebook

13. CYBERSPACE ISSUES PRESENTED TO EMPLOYERS • What are the risks of accessing and evaluating cyber-information on applicants as part of the screening process? • What are the risks of using cyber-information to take disciplinary action against current employees? • Should you regulate or outright prohibit cyberspace activities by current employees?

14. What are the risks of accessing and evaluating cyber-information on applicants as part of the screening process?

15. Who is Doing It? • In a recent Jump Start Social Media Poll, 100 hiring managers at small, mid-size and large companies were surveyed – • 75% use LinkedIn • 48% use Facebook • 26% use Twitter

16. Charitable activities Educational background Licenses Certifications Employment experience, including periods of unemployment Hobbies Special talents Fluency in foreign language Writing style Grammar/spelling Information Contained Online: The Good, The Bad & The Ugly

17. Race Gender Political views Controversial opinions Religion Genetic information Children National origin Sexual orientation/gender identity Age Information Contained Online: The Good, The Bad & The Ugly

18. Drug/alcohol/tobacco use Arrest/criminal history Marital/family status Other “lawful out of work activities” Health/psychiatric issues Prior lawsuits/charges Bigotry Workers’ comp claims Records of disabilities Union membership Information Contained Online: The Good, The Bad & The Ugly

19. Whistleblowing Disclosure Of Prior Employer’s Secrets Employer Bashing Gossip Sexual Content Harassment Of Co-Workers Defamation Of Employer’s Clients Or Third Parties Use of foul language Information Contained Online: The Good, The Bad & The Ugly

20. Do Employers Really Want to Utilize This Information in Hiring? Pros: • Important decision to hire someone • Invaluable information about character that you might not get anywhere else • Far easier to avoid a bad hire than to get rid of a bad hire • Failure to hire suits much less likely than suits over termination • Avoid negligent hiring claim

21. Do Employers Really Want to Utilize This Information in Hiring? Cons: • Captive with information impermissible to consider • Taint otherwise well-based decision • Tempt decision on improper information • Make decision on incorrect information • Bad publicity for company • Increase likelihood of litigation

22. Statutory Risks of Employer’s Use of Employee Cyberspace Activity • Federal Statutory Restrictions • Fair Credit Reporting Act • National Labor Relations Act - § 7 “concerted activity” • Railway Labor Act – railroads and airlines “protected organizing activity” • Anti-Discrimination Statutes (e.g., Title VII, ADEA, ADA) • Anti-Retaliation Statutes (e.g., FLSA) • Stored Communications Act • State Statutory Restrictions • Retaliatory Employment Discrimination Act • Workplace Violence Prevention Act • Off-Duty Use of Lawful Products

23. Risks and Common Law Restrictions • Invasion of Privacy • False Light (not recognized in NC) • Defamation (Libel and Slander)

24. What are the risks of using cyber-information to take disciplinary action against current employees?

25. Do Employers Really Want to Utilize This Information on Current Employees? Pros: • Can be an effective way to catch employee misconduct: • Dishonesty about need for absence • Harassing/discriminating behavior • Disclosing confidential information • Badmouthing company (but watch for protected activity!) • Illegal conduct • Can have employees sign Social Networking Policy which makes clear employer will monitor any workplace use • Avoid negligent retention claim

26. Do Employers Really Want to Utilize This Information on Current Employees? Cons: • Risk of inconsistency • Piecemeal information or happenstance • Real risk of making decision based on incorrect information • Bad publicity for company • Increased likelihood of litigation • Statutory (retaliation, off-duty lawful conduct) • Common law (invasion of privacy)

27. Recent Case Law Zimmerman v. Weis Markets, Inc. (Pa. CP 2011) • Plaintiff sued his employer after he was injured on the job by a fork lift • He sought lost wages and compensation for pain and suffering as a result of the “permanent diminution in [his] ability to enjoy life and life’s pleasures” • Specifically, he testified that he could no longer wear shorts because he was so embarrassed by the scaring on his leg • However, on public portions of his Facebook and MySpace pages the employee posted pictures in shorts with his scarred leg clearly visible • The court rejected plaintiff’s privacy claim as a defense to discovery and held that a person who voluntarily posts information to a social-networking profile has no expectation of privacy

28. Recent Case Law • EEOC v. Simply Storage Mgmt. (S.D. IN 2010) • Two women claimed they were subject to sexual harassment during employment • During discovery, Simply Storage sough plaintiffs’ Facebook and MySpace records claiming that they had placed their emotional state at issue by claiming medical treatment stemming from alleged harassment, depression, and post-traumatic stress disorder • The court found that the requested information was discoverable despite the fact that plaintiffs had “locked” their profiles from public access

29. Recent Case Law TEKsystems v. Hammernick (Dist. Ct. Minn. 2010) • TEKsystems sued three employees for breaching noncompetition and nonsolicitation agreements, among other things • TEKsystems claimed that one of the former employees had used her LinkedIn site to contact current TEKsystems employees to determine whether they were looking for career opportunities

30. Recent Case Law • Stengart v. Loving Care Agency, Inc. (NJ 2010) • Employee emails her attorney about potentially suing Company using Company’s computer but her personal Yahoo email account • After employee resigns, Company accesses emails and tries to use them against her in the lawsuit • Court held e-mails protected by the attorney-client privilege • Company’s ambiguous computer monitoring policy did not make clear that personal emails are Company property • Court specifically rejected idea that Company’s ownership of the computer is the sole determinative factor in deciding whether an employee’s personal communications become Company property

31. Recent Case Law • Van Alstyne v. Elec. Scriptorium, Ltd. (4th Cir. 2009) • Allowed punitive damages under the Stored Communications Act, even absent a showing of actual damages, where an employer had accessed an employee’s personal AOL e-mail account without the worker’s authorization.

32. Recent Case Law • Pietrylo v. Hillstone Restaurant Group (D.N.J. 2009) • Company managers surreptitiously monitored 2 employees’ postings containing complaints and sexual remarks about managers in a private, password protected MySpace account • Managers obtained the password from a female employee and then terminated the 2 employees • Employer liable for violating the federal Stored Communications Act and the NJ Wiretapping and Electronic Surveillance Control Act, because they obtained the password by duress

33. Recent Case Law Yath v. Fairview Clinic, N.P. (Minn. App. 2009) • Patient brought an action against healthcare provider and two of its employees where employees posted information from plaintiff’s medical file on a MySpace page • Ultimately, the employer won on summary judgment on plaintiff’s vicarious liability claim because the court held that wrongful access and dissemination of the patient’s private information was not foreseeable. And further granted summary judgment to Fairview on plaintiff’s invasion of privacy claim because there was no evidence that Fairview was involved in creating the webpage. • Key Point: Fairview blocked employee access to MySpace at work.

34. Recent Case Law Konop v. Hawaiian Airlines (9th Cir. 2002) • Hawaiian Airlines executive gains unauthorized access to website maintained by pilot Robert Konop which is critical of the Airline • Executive’s unauthorized access could have constituted a violation of the Stored Communications Act (SCA) and the Railway Labor Act

35. Recommendations on Use of Employee Cyberspace Activity 1. Informed Decision on Use of Internet Searches for Applicants/Employees • Know the pros and cons • Make an effort to minimize the use of impermissible information • Make every effort to verify factual information before basing a decision on it

36. Recommendations (Cont’d) 2. Gut Check • Do not try to access or break into any site that you have not been provided authorization to access • Do not falsify information or impersonate another individual in order to attempt to obtain access

37. Recommendations (Cont’d) 3. Retention of Information • Because you are opening the door to impermissible information, it is important to retain all permissible information on which you are basing your decision • Retain your search information so you cannot be accused of accessing information you did not • Retain information on the efforts you made to avoid accessing or using impermissible information

38. Recommendations (Cont’d) 4. Focus on Job-Relatedness of Information • Study the job description or list of essential functions • Have defined search criteria that match the job duties • Have a list of the type of information you are looking for • Have a list of the information you do not intend to look at or use

39. Recommendations (Cont’d) 5. Ensure Right Person is Involved • Don’t task this to someone who is not qualified and doesn’t have the right information • Should be an HR professional trained in these kinds of searches (if possible)

40. Recommendations (Cont’d) 6. Consistently Apply Search • Consistency, always important, is now even more critical • You are accessing information you would otherwise never have obtained • Be consistent in your search criteria • Be consistent in your decision-making criteria

41. Recommendations (Cont’d) 7. Check Terms and Conditions of Website Being Accessed • Do not violate the terms of a site in order to access information • Obtain appropriate information from your applicant or employee to access site lawfully • Some employers are asking for user names and passwords (!) to access password-protected sites like Facebook • A better practice would be to set up a Company page and request that the applicant/employee hit the “like” button

42. Recommendations (Cont’d) 8. Timing of Search: Pre-Offer/Post-Offer • Pros of post-offer include • Ability to avoid tainting otherwise well-based decisions on people you have no intention of hiring • Cons of post-offer include • Focusing the applicant on the reason for the decision and potentially increased likelihood of litigation due to yanking of job offer

43. Recommendations (Cont’d) 9. Include Release/Authorization in Applications • Should include express acknowledgement that the employee has no further privacy interest in any information posted on password-protected or user-only sites • Should at least attempt to obtain indemnification and release

44. Should you regulate or prohibit outright cyberspace activities by current employees?

45. What Kinds of Trouble Can Employees Get Into? • Trade secret disclosure • Disclosure of private customer and client information • Posting defamatory statements about the company, its products/services, co-workers/bosses, or clients • Engaging in discrimination/harassment through social media • False endorsement • Picking up viruses, worms, Trojan horses and other malware that can infiltrate your company network

46. What Kinds of Trouble Can Employees Get Into? • Posting offensive, embarrassing or otherwise objectionable content while identifying themselves with the Company • Waste and downtime at work • Non-compete issues • Privacy related torts

47. What kind of trouble can employers get into? • Postings can spread quickly to millions of people -- “viral” posts • Damage to the company’s reputation or brands • Loss of confidential information is hard to cure • Identity of offenders may be tough to learn • Firing for Internet use may lead to lawsuits • Off-duty conduct laws • Discrimination or retaliation • Whistleblowing under SOX • Concerted activity under the NLRA • Invasion of Privacy • Violations of Stored Communications Act, Wiretap Act, and Electronic Monitoring Statutes

48. The Employer’s Choice:Prohibit vs. Regulate • Prohibition • Effect on morale • Effectiveness of prohibition • Time to police it? • Resources to monitor? • Consistency • Enforcement – what will be the penalty for violations?

49. Prohibit vs. Regulate • Regulation • Some large employers like IBM, Sun Microsystems, Google and Microsoft have elected to regulate employee social networking and blogging by establishing internal, common sense guidelines on usage. • Social networking sites may be commercially helpful to your company (marketing, professional referrals, branding, etc.) • Social networking is this decade’s answer to email – it’s here to stay!

50. Social Networking Policy Elements • Employee must read and sign policy at outset of employment • Make clear in the policy that employees have no expectation of privacy when using company-issued equipment • Require adherence to company code of conduct/values • No slurs, demeaning jokes, sexist terms, offensive photos, etc. • Prohibit disclosure of company confidential information • Prohibit use of company logos or trademarks without written permission • Remind employees of their own personal responsibility for posts