My Space ® or Your Space? Social Networking

1. My Space® or Your Space?Social Networking SOUTH DAKOTA RETAILERS ASSOCIATION Presented by: Christopher E. Hoyme Jackson Lewis, LLP 10050 Regency Circle, Suite 400 Omaha, NE 68114 (402) 391-1991 HoymeC@jacksonlewis.com www.jacksonlewis.com

2. EMPLOYEE SOCIAL NETWORKING SITES

3. Types Of Social Networking • Email • Instant Messaging • Social Media Sites • FaceBook® • MySpace ® • LinkedIn ® • Blogs • Twitter ® • On-Line Media • YouTube ®

4. The Internet: Resources And Risks • The information age has brought new resources and new challenges to the workplace. Increasingly, employers are turning to the internet to obtain more information about job applicants. There is a tension, however, between the need to obtain information and the risks associated with acting on information obtained online.

5. Frequency Of Use During Working Hours • 6% of employees visit social networking sites only for business reasons • 5% …access social networking sites only for personal reasons • 10% …access social networking sites for both business and personal reasons • 52% …choose not to use social networking sites during work hours • 26% …stated the company’s network prevents them from accessing these sites SOURCE: http://www.deloitte.com/dtt/cda/doc/content/us_2009_ethics_workplace_survey_220509.pdf

6. Other Employment-Related Statistics • 74% of employees surveyed say it’s easy to damage a company’s reputation on social media. • 53% of employee respondents said their social networking pages are none of their employers’ business. • 40% of business executive respondents disagree, and 30% admit to informally monitoring social networking sites. • 15% of employees say that if their employer did something that they didn’t agree with, they would comment about it on line. SOURCE: http://www.deloitte.com/dtt/cda/doc/content/us_2009_ethics_workplace_survey_220509.pdf

7. Employment-Related Uses by Employees • Find jobs. • Communicate with other employees. • Communicate with clients, vendors or customers. • Research prospective employers. • Personal communication. • Spreading the word about a product or service. • Dissing the job, the boss or coworkers.

8. Sample MySpace® Page

9. Sample MySpace® Profile

10. Employment-Related Uses by Employers • Maintaining company sponsored sites • Branding or marketing tool • Introduce products • Build loyalty among employees • Screen candidates • Actively seek and recruit employees • Communicate with employees • Monitor the company’s reputation • Increase customers and customer loyalty

11. Potential Liabilities • General Areas • Exhibitionism: lack of filtering when posting information • Voyeurism: searching for information • Electronic Footprints • Shows where you have been and what you have been doing on line • Can be used for e-discovery

12. Risks for Employees • Disclosure of employer’s trade secrets or other confidential information • Liability for defamation and libel • Spreading untrue and disparaging information • Invasion of Privacy Claims • Harassment/Bullying • Disqualification from jobs • Posted information may reveal poor communication skills, drinking, sexual content, lies about qualifications, attitude toward previous employer, etc. • Copyright infringement/plagiarism

13. Risks for Employers • Harassment or Bullying by Employees • Textual harassment or sexting • Discrimination • Employer sponsorship of blog • Ratification of content by inaction • Obligation to take action to prevent or eliminate inappropriate content once on notice • Employer viewing applicant information • Sites may contain information regarding protected status • Information can be garnered that cannot be asked in an interview • May become evidence of what you knew when making employment decision. • Difficult for employer to prove it did not view and rely upon the information when making decision

14. Risks for Employers • Using the Web to Make Hiring Decisions • Many employers and job recruiters check out potential employees on the Web. • Using search engines such as Google or Yahoo and internet sites such as PeopleFinders.com, Local.Live.com or Zillow.com • Some studies show more than half of employers use some kind of screening on social networking sites.

15. Using Social Media for Recruitment • Attract Employees – through FaceBook® presence or advertising, LinkedIn® discussion board or YouTube® • Source – Twitter®, LinkedIn® • Engage – gather information from target employees for profiles • Screen – look at profiles • Close the deal – welcome through conversations on social network

16. Risks for Employers • Hiring Issues Associated with Using the Web • Lawful background checks? • Lawful-off duty conduct? • Even if not unlawful, employer may be making employment decisions based on inaccurate information.

17. Risks for Employers • Hiring Issues Associated with Using the Web • Access to information regarding protected status? • Learn about applicant’s workers’ compensation claim? • Learn about applicant’s bankruptcy?

18. Good Practice for Internet Recruiting • Do searches consistently. • Document them. • Determine how the information found is relevant to the job. • If make employment decision, based on information found, maintain records according to state and federal law.

19. Risks for Employers • Privacy Concerns • Does monitoring of or surveillance of employee blogs or social sites violate employee’s right to privacy? • Generally, no right to privacy. • Unless access is restricted by poster. • Wage and Hour Violations • Does time spent maintaining or contributing to company-sponsored blog or checking email constitute work under the FLSA?

20. Risks for Employers • Negligent Referral • FaceBook®, LinkedIn®, and Twitter® allow users to post recommendations from their employers. • Employee expects detailed favorable recommendation • Favorable on-line reference may conflict with employee performance evaluations • Negative online recommendation may be the basis for defamation claim.

21. Risks for Employers • Violations of NLRA protected rights • Posting may constitute “concerted action” • NLRA protects discussion of wages, hours and working conditions. • Unfair Competition/False Advertising • Federal Trade Commission Guides • Employer may be liable for violation if employee does not disclose relationship to employer when employee posts regarding products and services

22. Risks for Employers • Wrongful Termination • Potential Sarbanes Oxley violation where employee reports unlawful conduct online and is terminated • Not sure yet whether publication in a blog satisfies reporting requirement • Potential NLRA violation where employee complains in blog about company practices regarding pay, working conditions • Potential anti-retaliation violation where employee terminated for complaining in blog that manager treats blacks differently than whites

23. Risks for Employers • Disclosure of Trade Secrets or Proprietary Information • Risk of disclosing • Customer databases • Financial reports • Privileged passwords

24. Risks for Employers • Defamation or libel • If information is posted on company blog or company owned equipment, employer may be named as a defendant. • Copyright infringement violations • Unauthorized use of company logos

25. Risks for Employers • Violations of Security Laws • Disclosure of non-public material information • Illegal Use of Genetic Information • Genetic Information Nondisclosure Act (GINA) • Cannot discriminate based on genetic information • Cannot make employment decisions based on genetic information • Strict confidentiality requirements

26. Best Practices For Employees • Make employees aware that they are subject to same privacy laws as employers. • Place employees on notice regarding appropriate use of internet. • Ensure employees understand that posting equals world-wide publication. • Make employees aware of the privacy rights of others.

27. Best Practices for Employers • Be proactive. • Adopt a clear policy. • Train employees on the proper use of the Internet • Consider a total ban on the Internet during working hours. • Place employees on notice regarding potential monitoring. • Be consistent in disciplining for violations. • Understand the risk inherent in using the Internet and develop policies to manage potential pitfalls.

28. Key Provisions of a Social Media Policy • Expectation of Privacy • Eliminate employee expectation of privacy when using company owned technology. • Provide notice that monitoring will occur. • Consider informing employees and potential employees that you intend to monitor the Internet. • Obtain releases for such searches.

29. Key Provisions of a Social Media Policy • Posting During Working Time • Prohibit or limit use of social networking or blogging at work • None or limited during working hours • BUT, protected activity under NLRA

30. Key Provisions of a Social Media Policy • Required Disclaimers • Use true identity • If mention company and expressing opinion regarding Company, disclose posting is opinion of employee • If speaking about employer products or services, disclose employment relationship

31. Key Provisions of a Social Media Policy • Employee Responsibility • Employee is responsible for online activity conducted personally or which can be traced to Company. • Anti-Discrimination and Harassment • Information posted to blogs should not harass or attack an employee, contractor, customer or vendor based upon protected status.

32. Key Provisions of a Social Media Policy • All Company Polices apply to online use: • Handbook, Policies • Confidentiality of sensitive Company data • Privacy of personal information • Discrimination and Harassment

33. Key Provisions of a Social Media Policy • Disclosure of Confidential Information • Clearly prohibit disclosure of confidential information or trade secrets • Required Authorization • Prohibit against solicitation of customers, vendors, clients as friends, unless divulged and approval in advance.

34. Key Provisions of a Social Media Policy • Consequences • Clearly state that violations of policy can lead to disciplinary action, up to and including termination. • Reporting Procedure • Provide procedure for reporting violations of policy • Designate someone in Company who can be contacted regarding questions

35. Major Court Decisions: Right to Privacy • O’Connor v. Ortega, 480 U.S. 709 (1987) • Established public employee’s right to a reasonable expectation of privacy in the workplace • But case does not contemplate modern quandary related to social media • Quon v. Arch Wireless • Scheduled to be heard before Supreme Court Spring 2010 • Electronic Workplace Privacy Case • Issue : Whether a California police department violated the privacy of an officer when it read the personal text messages of his department-issued pager.

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39. Presented by: Christopher E. Hoyme HoymeC@jacksonlewis.com 10050 Regency Circle, Suite 400 Omaha, Nebraska 68114 (402) 391-1991 (402) 827-4232 Direct www.jacksonlewis.com