Blogs, Social Networking & Virtual Worlds: A Brave New Workplace Indeed

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Get your Twittering Facebook out of Myspace
What Employers Can Do to Limit Inappropriate
Conduct Via the Internet

• Presented By
• William E. Grob
• 813.221.7228 direct
• 813.541.7727 cell
• william.grob_at_ogletreedeakins.com

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Do You Think Social Networking is Just A Fad?
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Social Media Issues

• Who is using social media and how?
• Benefits and pitfalls of social media-based
  personnel decisions
• Employer liability for employee misuse
• Consequences to employees

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A Changing Vocabulary Context
WTF?
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Word of the Year tweet Word of the
Decade google (per American Dialect Society)
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Its Everywhere
Sun Microsystems CEO First to Resign via
Twitter In haiku! Financial crisis Stalled too
many customers CEO no more
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How are Employers Using Web 2.0?

• Monitoring productivity
• Detecting discrimination, harassment, other
  illegalities
• Vetting applicants

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Employers are watching

• 76 of employers monitor employee website
  connections
• 40 of private companies employ staff manually to
  read or analyze email
• 65 block connection to certain websites
• 42 track content, website keystrokes, time spent
  on keyboard
• 55 store and monitor email

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Employee Accountability Tracking
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Vast Potential Audience and Digital Permanency

• www.JobVent.com website for anyone who has ever
  said I hate my job or I love my job
• Blog postings related to my job, my work, and
  my boss far outweighed topics of food, sex,
  sports and dating (only kids and family came
  close)
• Current employees discussing work related issues
• 1 in 4 bloggers started because of frustration
  with jobs

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Are You In Web Headlines?

• www.googlealert.com
• www.tweetbeep.com

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Employees DO have something to hide

• 50 of web users say they would be embarrassed if
  their employer visited their social networking
  site
• 39 of employers do look at current employee
  social network profiles
• 53 of employees say social network content none
  of employers business
• 33 of employees do not consider business
  implications of postings

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Information you may wantor not!

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Headline Making Events-Cisco Fatty

• An applicant, immediately after being offered a
  job at Cisco, tweeted 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.
• A Cisco employee responded Who is the hiring
  manager? Im sure they would love to know that
  you will hate work. We here at Cisco are versed
  in the Web.
• This individual was not hired by Cisco.

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Headline Making Events The Fairy Intern

• On October 31, an intern e-mailed his employer
  that he could not come to work as he needed to
  get to NY immediately for a family emergency.
• Instead, he attended a Halloween party, posting
  on his Facebook page a dated picture of himself
  dressed as a fairy.
• The picture was promptly noted by his bosses,
  distributed around the office along with an
  e-mail thanking him for the notice, hoping
  everything was ok and adding nice wand.
• He was fired for lying.

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The Fairy Intern
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Headline Making Events Microsoft

• A Microsoft employee posted a photo to his weblog
  of pallets of new Apple computers on the
  Microsoft loading dock with the caption It looks
  like somebody over in Microsoft land is getting
  some new toys.
• Microsoft fired him claiming he was a security
  risk.

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Consequences to employers of Web 2.0 Misconduct

• 34 of companies report their business was
  impacted by the exposure of sensitive or
  embarrassing information
• 17 of employers experience increase in incidents
  of compromised intellectual property
• Impact on productivity
• 50 of workers spend 1-3 hours daily surfing web
• Activity in member communities accounts for 1
  in 11 minutes spent online
• Business loses 85 billion a year to workplace
  internet use

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Employer Headline Headaches

• Nurses in WI posted on Facebook pictures of x-ray
  with foreign object lodged in patient
• Hospital workers took picture of patient injuries
  with cell phones and posted on MySpace
• Three teenage KFC employees used dish sink as a
  hot tub and posted on Facebook
• Disgusting Dominos Pizza
• United Breaks Guitars parody

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Consequences to employees of Web 2.0 Misconduct

• 8 of companies have terminated employees for
  behavior on social media (double 2008 rate)
• 31 have terminated workers for violating email
  policies
• 15 have fired employees for violating multimedia
  sharing/posting policies

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Diary of a Fired Flight Attendant
Delta Airlines fired Simonetti for
inappropriate photos. She fought back,
claiming sex discrimination (Simonetti v. Delta
Airlines, No. 5-cv-2321 (N.D. Ga. 2005).
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Impacting Employment Litigation

• Sex harassment Plaintiffs MySpace page
  celebrates receiving the kind of attention she
  claims is unwelcome
• Employee on sick leave for depression posted
  photos on Facebook of her enjoying Chippendales
  show. Insurance company nixed benefits
• Plaintiff claiming hostile environment sent
  manager image from sex scene

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Federal Statutes

• Anti-Discrimination Statutes (ADEA, ADA, Title
  VII)
• Anti-Retaliation Statutes
• Compute Fraud Abuse Act (CFAA)
• Electronic Communication Privacy Act and Stored
  Communication Act (ECPA)
• NLRA

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State and Common Law Requirements

• Off duty use of lawful products or lifestyle
• State civil rights statutes
• Defamation
• Invasion of privacy
• Negligent hiring and retention
• Trade secrets

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Legal Risks

• Discrimination and harassment
• Protected speech or off duty conduct
• Giving references (negligent hiring)
• Electronic access statutes (ECPA, CFAA, SCA)
• Defamation
• FTC issues

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Current Case Law

• Konop v. Hawaiian Airlines (9th Cir. 2002)
• Hawaiian Airlines executive gains unauthorized
  access to website maintained by pilot Robert
  Konop which is critical of the Airline
• Executives unauthorized access could have
  constituted a violation of the Stored
  Communications Act (SCA) and the Railway Labor Act

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Current Case Law

• Quon v. Arch Wireless Operating Co. (9th Circuit,
  6/18/08)
• City-owned pagers issued to police.
• City requested vendor to provide transcripts of
  text messages without users consent some were
  sexually explicit.
• Stored Communications Act (SCA) prohibits
  electronic communication services from disclosing
  content without users consent.
• SCA violated by Arch Wireless City, PD and
  Sargeant violated right to privacy.

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Current Case Law

• Van Alstyne v. Elec. Scriptorium, Ltd. (4th Cir.,
  3/18/09)
• Allowed punitive damages under the Stored
  Communications Act, even absent a showing of
  actual damages, where an employer had accessed an
  employees personal AOL e-mail account without
  the workers authorization

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Current Case Law

• Pietrylo v. Hillstone Restaurant Group, (D.N.J.,
  June 16, 2009)
• Company managers surreptitiously monitored 2
  employees postings containing complaints and
  sexual remarks about managers in a private,
  password protected MySpace account
• Managers obtained the password from a female
  employee and then terminated the 2 employees
• Employer liable for violating the federal Stored
  Communications Act and the NJ Wiretapping and
  Electronic Surveillance Control Act, because they
  obtained the password by duress

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Current Case Law

• Stengart v. Loving Care Agency, Inc., (NJ App.
  Div., 6/26/09)
• Employee emails her attorney about potentially
  suing Company using Companys computer but her
  personal Yahoo email account
• After employee resigns, Company accesses emails
  and tries to use them against her in the lawsuit
• Court held e-mails protected by the
  attorney-client privilege
• Companys ambiguous computer monitoring policy
  did not make clear that personal emails are
  Company property
• Court specifically rejected idea that Companys
  ownership of the computer is the sole
  determinative factor in deciding whether an
  employees personal communications become Company
  property

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City of Ontario v. Quon

• PD had official no-privacy policy but lieutenant
  announced informal policy of allowing some
  personal use of pagers.
• Supreme Court held search of text messages was
  motivated by legitimate, work related purpose and
  was not excessive in scope
• The Supreme Court assumed, but did not decide the
  employee had reasonable expectation of privacy

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Invasion of Privacy

• With public employees, might be constitutional
  issues
• Some states (IL, MI) prohibit compiling
  information about politics, associations,
  non-work activities
• Germany passed law prohibiting use of Social
  Media in any hiring decisions

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Why Do Employers MonitorEmployee Online Use?

• Dishonesty regarding absence
• Harassing/discriminatory behavior
• Disclosing confidential information
• Badmouthing company
• Detect illegal conduct
• Help avoid negligent retention claim
• Lack of productivity

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Social Networking Compliance

• 50 of 1,400 employers surveyed
• Do not have social networking policy
• Do not know if they do
• (Source Society of Corporate Compliance and
  Ethics)
• 50-70 ban sites such as Twitter, Facebook,
  MySpace while on the clock
• More block SN sites than shopping, weapons,
  sports, or alcohol sites

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Enforcement Dilemma

• Negative impact on morale
• Do employers have time to police?
• Do employers have resources to monitor?
• Consistency
• What are the penalties?

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Social Media Policy Elements

• Read and sign policy at hire
• Require adherence to code of conduct/values
• No slurs, demeaning jokes, sexist terms,
  offensive photos, etc.
• No disclosure of confidential information
• Remind employees of personal responsibility for
  posts
• No right to privacy

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Social Media Policy Elements

• Mandate strong, specific disclaimers Opinions
  are employees NOT the companys
• Limit blogging, Tweeting, Facebooking to
  business-related purposes
• Violation can lead to discipline, up to
  termination
• No anonymous posts
• Encourage positive use of blogs and sites if
  appropriate for your business or organization
• For examples www.socialmediagovernance.com

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Implications of Cyber-Vetting in Hiring
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Accessing Online-Information on Applicants

• Why?
• 44 of applicants lied about work history
• 41 of applicants lied about education
• 20 of applicants lied about credentials
• Avoid Liability
• 50 billion in employee theft
• 1-2 million in workplace violence incidents can
  lead to negligent hire and retention suits

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Who is Doing it?

• 60-70 hiring managers use even before initial
  interview
• 80 plan to use to find or attract candidates
• 70 of recruiters reject person based on online
  reputational information
• In a June 2009 CareerBuilder survey 48 used
  social networking sites to screen potential
  employees (up from 22 in 2008) another 11 said
  they plan to start soon

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Impact On Hiring Practices

• 35 of companies have not hired candidates based
  on content of their social networking site
• Discriminatory comments
• Confidential information from a former employer
• Lies about qualifications
• Disparaging comments about a former employer
• Writing style and communication skills
• Misrepresented licenses and certifications
  revealed
• Candidates personality
• Provocative photos
• Content about drink and drugs
• Using text language i.e., LOL

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Impact On Hiring Practices

• 18 said they were encouraged to hire an
  applicant based on site
• Creativity
• Positive references
• Professional skills

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Beware Cyber Vetting Issues

• TMI some impermissible to consider
• May taint otherwise well-based decision
• Tempt or make decision on improper information
• Bad publicity for company
• Increase likelihood of litigation
• Recordkeeping nightmare
• Cannot unring the bell, once info gotten must
  prove did not consider age, religion, disability,
  race
• Identity, authenticity, and accuracy issues

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Questions?

• Thank You!
• William E. Grob
• Ogletree, Deakins, Nash, Smoak Stewart, P.C.
• william.grob_at_ogleetreedeakins.com
• 813.221.7228 direct
• 813.541.7727 cell