The North Central Washington Technology Alliance presents

1. The North Central Washington Technology Alliancepresents Facebook 201 for Business June 21, 2011 Paul S. Kube, JD OGDEN MURPHY WALLACE, PLLC

2. Social Media: Overview • Facebook – Social Networking website. • MySpace – Social Networking website. • Twitter - Free social networking and micro-blogging service that enables its users to send and read messages known as tweets.

3. Social Media: Overview LinkedIn – A business-oriented social networking site mainly used for professional networking. Employers can list jobs and search for potential candidates. YouTube – Video-sharing website that allows users to upload, view, and share user-generated video clips. Flickr - An image and video hosting website and online community that allows users to share photographs and videos.

4. Social Media: Overview Blogs – A contraction of the term “weblog,” is a type of website, usually maintained by an individual with regular entries of commentary, description of events, or other material such as graphics or video. The ability for readers to leave comments in an interactive format is an important part of many blogs.

5. Legal Issues for Employers • Potential use in threatened or ongoing litigation. • Potential liability for torts committed by employees. • You could be held liable for defamation, invasion of privacy, or negligence if an employee posts negative statements about another person or a competitor. • Potential liability for harassment or discrimination.

6. Legal Issues for Employers • Trade secrets and intellectual property infringement. • Disclosure of certain trade secrets can destroy the “confidential” status of the information. • Trade libel. • Misstatements or misrepresentations about a competitor could lead to claims of trade libel.

7. Legal Issues for Employers • Employment actions. • Employees may try to sue you for wrongful termination or discrimination if their employment is terminated because of a posting that references personal aspects of their life (e.g. marital status or sexual orientation)

8. “Dooced” • UrbanDictionary.com defines “dooced” as “getting fired because of something that you wrote in your weblog” • Blogger Heather Armstrong coined the phrase after getting fired from her job for writing about work and coworkers on her blog, dooce.com.

9. “Dooced” A former Wal-Mart cashier says he was fired for joking on his MySpace page that the company’s average IQ would increase if a bomb were dropped on the company’s stores. A probationary officer with the Trotwood (Ohio) Police Department (who was already under investigation for using a Taser on a pregnant woman in the police lobby) was fired for posting photos of evidence from police investigations on MySpace. Specifically, the pictures involved marijuana and money seized in a drug bust, and a cruiser’s speedometer indicating a speed of 100 mph.

10. “Dooced” In April 2009, two Domino’s Pizza employees were fired and face felony charges for food tampering after they posted YouTube videos, which included the employees passing gas on salami, sneezing on ingredients, stuffing cheese up their nostrils and then using those items on food.

11. “Dooced” Microsoft terminated an employee after he posted a picture on his personal blog of Apple computers being delivered to Microsoft’s headquarters.

12. “Dooced” A Texas teacher was fired for posting topless photographs of herself on Flickr.com. A CNN Editor was fired after tweeting she had “respect” for the recently deceased Sayyed Mohammed Hussein Fadlallah, who has been connected to several bombings where hundreds of Americans were killed.

13. Additional Considerations with Social Media Loss of productivity. Social engineering and phishing. This can result in data or identity theft. Most people don't divulge details to strangers but it is amazing to see what personal information can be gleaned from social networking sites. These sites are attractive to hackers and spammers.

14. Practical Implications Social networking tools come with significant legal risks. Employers need to take immediate steps to develop and implement policies that address the multiple issues generated by the use of social networks among employees.

15. Practical Implications Employers first need to decide whether they will allow employees to access social networking sites at any time using company networks and/or equipment. This decision should be made with consideration into the current company culture.

16. Practical Implications If access is authorized, employers need to strike an appropriate balance, consistent with organizational culture, between allowing or encouraging employee usage of these networks, and the legal risks that their use in the workplace presents.

17. Practical Implications Additional considerations by the employer include, but are not limited to, the following: • How far should the policy reach? • If social networking is prohibited, how will it be monitored?

18. Practical Implications If social networking is permitted, should use be limited to work related conduct only? If social networking is permitted, should personal use be allowed under any circumstances?

19. Practical Implications Do you want the employee to identify with your business when networking online? How will you define “appropriate business behavior?”

20. Practical Implications How will social networking interact with broader harassment, discrimination, and technology policies? Is there an obligation to bargain technology changes with a union? How will training be conducted? Should the employer establish a team to monitor social networking?

21. Workplace Policies to Address Social Media Concerns It is no longer sufficient to rely on an old e-mail policy. Your approach to drafting a policy depends on the benefits, risk and needs of your company. As to private employees, there is no such thing as free speech in the workplace. This should be clearly communicated to private employees in your employee handbook.

22. Workplace Policies to Address Social Media Concerns Consider the following when creating your policy: • prohibit disclosure of confidential or proprietary information; • prohibit the disclosure of the name of the business in personal websites or social networking sites (except professional sites such as LinkedIn); • State that you can and will monitor and investigate all use of electronic communications systems, devices, and platforms;

23. Workplace Policies to Address Social Media Concerns have employees acknowledge that the employer has the right to monitor e-mails and internet usage on company computers; prohibit the use of the company's trademark; prohibit the use of defamatory, harassing or disparaging language;

24. Workplace Policies to Address Social Media Concerns prohibit content that violates the law (e.g. obscenity); prohibit writing or commenting on content that would constitute a violation of any other policies or standards of conduct applicable to employees;

25. Workplace Policies to Address Social Media Concerns reiterate that employees can be disciplined, up to and including termination, for inappropriate use of electronic communications, devices, and platforms; identify a point person for questions or issues about social media use.

26. Social Media Training Employees should receive training that addresses some or all of the following issues: • Electronically transmitted messages cannot truly be deleted and can be searched for and printed out weeks or months after they are sent; • E-mails and text messages sent from a personal account to a coworker’s personal or company account are covered by your anti-harassment policy;

27. Social Media Training Off-duty or outside of work conduct aimed at coworkers (e.g., posts on a social network) can still be investigated as potential harassment because of the workplace connection between the two individuals; Posts on social networking sites may be viewed by persons outside the employee’s network of friends and may result in the employee being reported for harassing or inappropriate conduct;

28. Social Media Training Social networking sites can and will be searched by you for many legitimate reasons, and you can see and read what employees are posting; Accepted workplace behavior and etiquette standards should be observed, even in cyberspace communications;

29. Social Media Training Whether employees would want their mother or spouse/partner to see their post should be considered before they click “send”; and Employees’ postings on social networking sites can affect both current and prospective employment.

30. Internet Searches and Surveillance of Current Employees • There are few legal restraints on employer internet searches of current employees. • Such searches are usually motivated by a legitimate business concern. • e.g. Third parties harmed by an employee's use of the internet may commence litigation against the employer claiming negligent hiring, training or supervision; Employer may discover that employee posted proprietary or confidential information.

31. Internet Searches and Surveillance of Current Employees • Be careful of electronic “voyeurism.” This can create an appearance of surveillance toward protected collective worker activities and can be used to prove employer animus toward those activities. • Also the timing of an employer's discovery of personal information (such as a medical condition) could support an employee's claim that subsequent adverse employment action was motivated by discovery of that personal information.

32. Internet Searches and Surveillance of Current Employees Again, have a workplace computer policy in place, conditioning employee's use on the right of the employer to monitor, otherwise the employer risks a violation of privacy claim.

33. Issues Relating to Union Employees Protected “Concerted Activities.” • The National Labor Relations Act (NLRA) gives workers a federally protected right to form unions, and it prohibits employers from punishing workers – whether union or nonunion – for discussing working conditions or unionization.

34. Issues Relating to Union Employees • The National Labor Relations Board (NLRB) recently filed a complaint against a company that terminated an employee after she criticized her supervisor on Facebook. • Under the terms of the settlement, the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.

35. Issues Relating to Union Employees • Surveillance. Violations of the NLRA have been found even where an employer takes steps to surveil employees in open areas on or near its property. • While the National Labor Relations Board has not yet ruled on a case of Facebook surveillance, Facebook gives employers similar ability to view whether the employee is a fan of union sites or other political sites associated with unions, and whether the employee is friends with other employees who are known to be union activists.

36. Issues Relating to Union Employees • Requiring employees to maintain Facebook pages and/or friend employers unlawfully creates an impression of surveillance, which would violate section 8(a)(1) of the NLRA. • The test is whether an employee would “reasonably assume from the statement in question that his union activities had been placed under surveillance.” U.S. Coachworks, 334 NLRB 955, 958 (2001), enforced, 53 Fed. Appx. 171 (2002).

37. Issues Relating to Union Employees • Cases of the like arise in situations where an employer representative has said something to an employee indicating that they have been monitoring union activity. • Examples: Daikichi Sushi, 335 NLRB 622, 623 (2001) (employer told employee it was an “open secret” that employee joined union); Fred'k Wallace & Son, 331 NLRB 914 (2000) (employer indicated knowledge of private conversation between employee and union organizer)

38. Legal Risks Associated with a “Social Media” Termination Discrimination. • An employee terminated due to use of social media may argue that they are victims of discriminatory enforcement. • The proverbial “unringing of the bell” poses difficulty to the employer. You will be forced to argue that while you knew of the information related to a protected characteristic, it did not sway your employment decision.

39. Legal Risks Associated with a “Social Media” Termination Retaliation. • If an employee is opposing a discriminatory practice on a social networking site or blog, subsequent adverse action by the employer could lead to a claim of retaliation.

40. Legal Risks Associated with a “Social Media” Termination Whistleblowing. • Employers need to consider whether the information posted by the employee could be considered a “report” of a violation of the law.

41. Legal Risks Associated with a “Social Media” Termination Protected “Concerted Activity.” • Discussed above. Before taking adverse action against an employee for social media postings, you should consider whether those postings represent an effort to organize a union or relates to a labor dispute.

42. Legal Risks Associated with a “Social Media” Termination First Amendment Right to Free Speech. • Public employees may enjoy some First Amendment protections if the content of the post constitutes a “matter of public concern.”

43. Internet Searches of Prospective Employees “Cybervetting.” • A recent Microsoft survey indicates 79% of human resource professionals engage in this practice of viewing social network sites to obtain information about a job applicant. • 70% reported they have rejected a candidate based on information obtained online about a candidate.

44. Internet Searches of Prospective Employees Factors relating to age, color, gender, disability, age, national origin, and sexual preference may be inadvertently discovered during cybervetting. In the face of a claim that an illegal hiring decision was subsequently made on one or more of these factors, it would be helpful to have a policy for screening applicants in a uniform manner.

45. Internet Searches of Prospective Employees Factors to consider include: • listing the social media sites that will be searched for each applicant; • listing the lawful information about applicants desired from every search; • having a neutral third party that will conduct the search; • prohibiting the organization from “friending” an applicant to gain access to nonpublic social networking profiles.

46. Internet Searches of Prospective Employees Potential exists for claims of negligent hiring if employer fails to cybervet. Time will only tell whether the increasing use and relative ease of cybervetting will be deemed by the courts to create a due diligence obligation on the part of an employer to cybervet a prospective employee.

47. Internet Searches of Prospective Employees • The Fair Credit Reporting Act sets national standards for employment screening. • The law applies only to background checks performed by an outside company, called a “consumer reporting agency,” and does not apply when an HR representative informally Googles an applicant's name. • Note, however, that if you retain an outside agency to conduct the background search, including an online investigation, then consent would be required.

48. The Stored Communications Act (“SCA”) Enacted to ensure the confidentiality of electronic communications. Section 2701 states that an offense if committed by anyone who “(1) intentionally accesses without authorization a facility through which an electronic communication service is provided, or (2) intentionally exceeds an authorization to access that facility, and thereby obtains...[an] electronic communication while it is in electronic storage in such system.”

49. The Stored Communications Act (“SCA”) Example: In City of Ontario v. Quon, 529 F.3d 892 (9th Cir. 2008) the Ninth Circuit held that an employer violated the SCA by providing transcripts of an employee police officer's personal text messages sent on a device paid for by the employer. (The United States Supreme Court ultimately reversed the decision on other grounds.)

50. The Stored Communications Act (“SCA”) Example: In Pietrylo v Hillstone Restaurant Group, 2009 WL 3128420 (D. N.J. 2009) a federal district court affirmed a plaintiff's verdict, including punitive damages, in a case where the employer violated the Stored Communications Act when two of its managers accessed a “chat group” on an employee's MySpace page account without having received authorization from the MySpace member to join the group, but instead had coerced another employee to give them the password.