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Introductions

EPLI Litigation: One Degree of Separation Between Employees’ Use of Social Networking and Employers’ Exposures?. Introductions. MODERATOR: Mercedes Colwin, Esq., Managing Partner, Gordon & Rees LLP PANELISTS: Sarah Goldstein, Esq., Partner, Kaufman Dolowich Voluck & Gonzo, LLP

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Introductions

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  1. EPLI Litigation:One Degree of Separation Between Employees’ Use of Social Networking and Employers’ Exposures?

  2. Introductions MODERATOR: • Mercedes Colwin, Esq., Managing Partner, Gordon & Rees LLP PANELISTS: • Sarah Goldstein, Esq., Partner, Kaufman Dolowich Voluck &Gonzo, LLP • Catherine Padalino, Vice President, EPL Product Manager, Chubb Specialty Insurance • Lisa A. Turbis, Esq., Senior Corporate Counsel, Litigation & Marketing, Autodesk, Inc. • John S. West, Esq., Partner, Allred, Maroko & Goldberg

  3. Agenda • Social Networking Claims • Company Practices and Procedures • Preventing or Mitigating Effect of Social Media • The Reputational Risk for your Company

  4. Social Media Today

  5. The Social Media Revolution

  6. Social Media Today Weblogs Commercial Websites Industry Forums Industry Boards

  7. What Constitutes a SocialNetworking Claim? • Improper Discovery of Personal Information • Viewing of Employee Online Conduct and Company Liability • Unlawful Invasion of Privacy • Illegal Background Checks

  8. The Hiring Process

  9. What Can be Used in the Hiring Process • Experience • Future Goals • Google Information • Online Editorials

  10. What Cannot be Used in theHiring Process • Age • Sex • Religion • Disability • Race/Color • National Origin • Pregnancy

  11. Employers Rights vs. Lifestyle Statutes • Political Activities • Legal Use of Consumable Products • Legal Recreational Activities • Union Membership

  12. The National Labor Review Board (NLRB) The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees' rights

  13. The Role of the NLRB • Conduct Elections • Investigate Charges • Facilitate Settlements • Decide Cases • Enforce Orders

  14. The National Labor Relations Act (NLRA) Creates a right for private-sector employees to engage in concerted activities for the purpose of mutual aid or protection

  15. The NLRA Section VII • Defines what is a protected activity • New report states certain policies regarding employees' use of the social media may violate Section VII

  16. Company Practices and Procedures

  17. Discriminatory Recruitment Consideration given only to applicants with: • Online profiles • Specific information ontheir profiles • Social networking profiles • Large number of friends/contacts

  18. NLRB Provides Guidance for Employers on Social Media Policies • Social media policies should be narrowly tailored • Should not prohibit “concerted activity” via social media • Union and non-union employees alike are covered by the NLRA

  19. The Overly Broad Policy Overly broad social networking policies include prohibiting: • the use of social media to post pictures • employees “making disparaging comments” • engaging “in inappropriate discussions about the company, management, and/or coworkers” • employees from using the company’s name, address or other information

  20. How to Narrow SocialNetworking Policies • Should be clear and understandable • Policies should be narrowly drawn • Put employees on notice of a social media policy’s coverage • Limiting language

  21. Social Networking Policies • Indentify acceptable and unacceptable uses of social media • Minimize negative reactions • Specify easy-to-understand guidelines and require employees to meet them

  22. What is Acceptable Policy? • Personnel must post under their own name and write in the first person • All individuals must not cite or reference clients, employees, members, or other affiliated persons or entities • There is no expectation of privacy online

  23. Recent Social Networking Claims

  24. Fired Because of Facebook?

  25. The LB&B Associate Firings • Routine background check leaves 18 Navy Contractors jobless • Provided no details of investigation • “No Determination Made” assessment • Information could be outdatedor wrong • Employee unable to appeal

  26. The Accenture Class Action • International management consulting firm • Accused of firing qualified individuals with criminal records • Criminal history has no bearing on position • Discriminates against African Americans and Latinos

  27. Martin Gaskell v. University of Kentucky • Passed over to be director of Student Observatory • Perceived to be critical of evolution in contrast with the University

  28. The Preventing or Mitigating Effect ofSocial Networking Claims

  29. Third Party Vendor Searches • Must Comply to the Fair Credit Reporting Act • Protects Privacy • Applicants Must Consent

  30. Have Policies in Place • Fair Hiring and Recruitment • Training • Discrimination and Harassment • Employee Rights • Narrow Social Media Policies

  31. How can Social Media Affect my Company?

  32. Thank you for Calling Domino’s Pizza

  33. "Your Way Right Away!"

  34. Questions & Answers

  35. Many thanks to … • Mercedes Colwin, Esq. • Sarah Goldstein, Esq. • Catherine Padalino • Lisa A. Turbis, Esq. • John West, Esq.

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