Three Strikes and You’re Out! Part Three :

1. Three Strikes and You’re Out!Part Three: The Brave New Frontier in Employment Law – Social Media Jim Drozdowski V.P. & General Counsel North Coast Container Corp.

2. Social Networking & Employer Monitoring

3. Social Networking Sites As A Recruiting or Hiring Tool • 45% use social networking sites to screen candidates • 18% reported finding content encouraging them to hire

4. Minimizing Employee Misuse of Social Networking Sites • 66% of employers monitor Internet connections • 12% monitor the “blogosphere” to see what’s being written about the company • 10% monitor social networking sites • 43% monitor e-mail

5. Legality & Advisability • Posting personal information without limiting availability weakens the “expectation of privacy” • Employers may lawfully search/Google for information about applicants • Mullins v. Dept. of Commerce, 244 Fed. Appx. 322, 2007 WL 1302152 (Fed. Cir. 5/4/07)

6. What if, on a Social Networking Site, the Candidate: • posted inappropriate photos or content about drinking or drug use • bad mouthed his/her previous employer, co-workers or clients • made discriminatory comments • lied about qualifications • shared confidential information from previous employer

7. For Example: • “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.” • “Who is the hiring manager[?] I’m sure they [sic] would love to know that you will hate the work. We here at Cisco are versed in the web.” • Molly DiBianca, Twitter Saves Cisco a Bundle of Money, Del. Emp. Law Blog (3/30/09)

8. The Other Side of the Coin: • Candidates should be considered solely on the basis of their qualifications and on the likelihood of successful job performance, without regard to any protected characteristic • Ability to do job • Interest in job

9. Information to avoid. . . • When/where born • Union activities • Photographs? • Past or current medical conditions • Native language • Past litigation experience

10. Potential Landmines in your own posts • Admissions to support co-worker litigation • Admissions to support third-party claims • Bad public relations

11. Perhaps the Biggest Landmine:National Labor Relations Act • Section 7 of the NLRA protects “concerted activities” • “Concerted activities” • 2 or more employees • Mutual aid and protection • Protections also apply in non-union context

12. Recent NLRB Case • American Medical Response of CT • Dawnmarie Souza, an EMT • Souza posts negative comments about her supervisor on her private Facebook page

13. Recent NLRB Case • Souza: “looks like I’m getting some time off. Love how the company allows a 17 to be a supervisor!” • [A “17” is the employer’s code for a psychiatric patient] • Commenter: What happened? • Commenter: What now? • Souza: Frank being a d***. • Commenter: I’m so glad I left there! • Commenter: Ohhh, he’s back, huh? • Souza: yep has a scumbag as usual [sic] • Commenter: I am sorry, hon! Chin up!

14. Other Recent Cases • Five employees fired for posting Facebook comments criticizing their employer’s “staffing levels and workloads” • T.V. reporter who tweeted: “What!?!? No overnight homicide? WTF? You’re slacking Tucson!”

15. Legal considerations. . . . • Nexus to job performance • “Concerted protected activity” • Consistent enforcement • Avoid fine distinctions • e.g., selective enforcement to prevent union chatter

16. More Fun with Social Media

17. Would you hire this lawyer?Cleveland Ladies Starting 'Bushes For Bron' Campaign Posted by Vince Grzegorek on Mon, Jun 14, 2010 at 12:08 PM Sorry, Edward. Cool it with the trimming for a little bit.Local ESPN radio affiliate WKNR 850 recently launched Beards for Bron, a plea to male Cavs fans everywhere to put down the razor in a show of solidarity for King James and their desire for him to remain in Cleveland. A nice gesture, perhaps, but one that holds approximately zero hope of achieving real change, much like similar movements and gesture throughout the country from cities hoping to lure the Chosen One.Ashlie Case — Cleveland resident, Cavs backer, Snoop fan — has a better idea, one that has potential to actually effect real change.Witness Bushes for Bron.Ashlie wants Cleveland's ladies to put down the razors, too. Yep, we're talking a town of women going au naturale, boys. What better way to push the men in the Cavs organization to get their shit together and lock down LeBron? That's motivation, my friends. This could put the whole free agency mess to bed in a matter of weeks.

18. A real no-brainer. . . . Here's the breakdown from Ashlie herself, exclusive to Scene, on the Lysistrata-esquequerrilla tactics that could save Cleveland. Bushes for Bron: Snoop approves. “Bushes for Bron is the feminine counterpart to Beards for Bron. And it is exactly what it sounds like: a resolution by female Cavs fans to refrain from waxing, shaving, or otherwise grooming their ladyparts until LeBron signs up to extend his tenure in Cleveland. No razors, no laser treatments, no Brazilians. (My apologies to Kate at Zen. I'll see you after free agency.) And to the extent anyone still uses Nair, put that away, too. Obviously, a man sporting a beard is a much more public display of support for retaining our homegrown prodigy. But perhaps the impact of the Bushes campaign will be felt in a much more personal way, and it certainly has the potential to hit closer to home. I'm not convinced that the moratorium will keep our local hero in a Cavs uniform. Unless, of course, we can convince LeBron's girlfriend to sign on. That would certainly improve our chances.”

19. Another Facebook Offense • Intermittent FMLA for chronic back pain • Day off due to “crippling” back pain • Facebook photos partying at local Oktoberfest • Employer’s “honest belief” employee engaged in fraud justifies discharge • FMLA fraud can be a terminable offense • Jaszczyszyn v. Advantage Health Physician Network, (6th Cir., Nov. 7, 2012)

20. Around the world in 72 hours • Meet Kelly Blazek, the self-proclaimed “Mother” of the Cleveland Job Bank • Receives email from recent college grad/job seeker, wanting to connect on LinkedIn

21. Around the world in 72 hours • Kelly sends a scathing response: I love the sense of entitlement in your generation. And therefore I enjoy denying your invite. Apparently you have heard that I produce a Job Bank and decided it would be stunningly helpful for your career prospects if I shared my 960+ LinkedIn connections with you – a total stranger who has nothing to offer me. Don’t ever write me again. You’re welcome for your humility lesson for the year.

22. Social Media Lashes Out in Defense of the Job Seeker It only takes a few shares. Bet her precious contacts will drop her like a bad habit. Trust me people.. She may be #IABC, but Kelly Blazek does not represent our profession.

23. Within 72 hours. . . . • The story made headline news in Cleveland • And on CNN • And the BBC • A “Krabby Blazek” parody was created on Twitter • Blazek surrendered her “Communicator of the Year” award

24. QUESTIONS?