ENFORCING SOCIAL MEDIA AND COMPUTER USAGE POLICIES

ENFORCING SOCIAL MEDIA AND COMPUTER USAGE POLICIES Haley R. Van Loon BrownWinick 666 Grand Avenue, Suite 2000 Des Moines, IA 50309-2510 Telephone: 515-248-6625 Facsimile: 515-248-6626 E-mail: vanloon@brownwinick.com

With advent of social media many employers looking for ways to capitalize on advantages inherent in these new ways of communicating with customers, vendors and employees

Social Media Pitfalls • Proprietary/confidential information • Identity protection • Cyber-bullying/harassment • Deceptive trade practices

“Best Practice Policies” v. National Labor Relations Board (NLRB)

NLRB Federal agency responsible for safeguarding rights of employees to organize and to prevent and remedy unfair labor practices

Protected Concerted Activity The right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection

5/28/2011 NLRB General Counsel Report Result of 14 unfair labor practice cases involving discipline for employee statements in social media

Two Contexts of NLRB Review • Overbroad employer policies • Unlawful discharge or discipline

NLRB Analysis of Employer Policies • Explicitly restrict protected activities; or

NLRB Analysis of Employer Policies 2. a. Would employee reasonably construe policy to prohibit protected activity, or

NLRB Analysis of Employer Policies 2. b. Was rule enacted in response to union activity, or

NLRB Analysis of Employer Policies 2. c. Has rule been applied to restrict protected activity

NLRB Analysis of Discipline • Was employee acting with or on the authority of other employees?

NLRB Analysis of Discipline • Was employee making statements that clearly implicated working conditions?

NLRB Analysis of Discipline • Was employee protesting supervisory action?

Employer Defenses • Employee would have been discharged even if not engaged in protected activity

Employer Defenses • Employee activity so “opprobrious” as to render employee “unfit for further service”

Employer Defenses • Employee was so disloyal as to lose protections under law

Recommendations . . . • Avoid overbroad prohibitions • Logos/uniforms • “Disparaging-disrespectful-offensive” • Use of company name in profile

Recommendations . . . Use Examples of Prohibited Activity

Recommendations . . . Disclaimer: Nothing in this Policy shall be construed to limit in any way your rights under any applicable federal, state or local law, including but not limited to the National Labor Relations Act

Before you discipline, consider: • Is employee activity related to terms and conditions of employment?

Before you discipline, consider: • Were co-workers involved or did they comment on the post?

Before you discipline, consider: • Was the activity related to prior discussions with co-workers?

Before you discipline, consider: • Has the issue (or will it) been discussed with management?

Scenario: You discover a former employee accessed and downloaded confidential or proprietary files and is now working in competition

Computer Fraud & Abuse Act (CFAA) 18 USC § 1030

Prohibits accessing a “protected computer” in interstate or foreign commerce “without authorization” and obtaining information, or damaging data/equipment

Violation is a criminal act, punishable by fines / imprisonment

Courts have reluctantly enforced, focusing on “without authorization” requirement in CFAA

Recommendations . . . • Clearly delineate restriction: Avoid broad bans on “unauthorized use” or “competitive purposes”

Recommendations . . . • Report and reinforce prohibition • Training • Security reminders • Logon prompts

Recommendations . . . • Caution against undercutting policy through statements or condoning violations

Recommendations . . . • Include personal devices used / approved for business use

Recommendations . . . • Articulate that authorization ends upon termination or accepting competitive employment

Restrictive Covenants and LinkedIn

Restrictive Covenants • Non-competition • Non-solicitation

“Direct or indirect”

Public nature of LinkedIn-type social media may undercut argument that employee’s business contacts are a proprietary resource

Consider . . . • Limiting use of LinkedIn with clients / vendors • Requiring employees to “disconnect” upon termination

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ENFORCING SOCIAL MEDIA AND COMPUTER USAGE POLICIES