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


Social Media Policy Elements Read and sign policy at hire Require adherence to code of ... CFAA, SCA) Defamation FTC issues Current Case Law Konop v. Hawaiian ... – PowerPoint PPT presentation

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

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

Do You Think Social Networking is Just A Fad?
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

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

Employers are watching
  • 76 of employers monitor employee website
  • 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

Employee Accountability Tracking
Vast Potential Audience and Digital Permanency
  • 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
  • Current employees discussing work related issues
  • 1 in 4 bloggers started because of frustration
    with jobs

(No Transcript)
Are You In Web Headlines?

Employees DO have something to hide
  • 50 of web users say they would be embarrassed if
    their employer visited their social networking
  • 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

Information you may wantor not!

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.

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.

The Fairy Intern
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

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

(No Transcript)
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

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
  • 15 have fired employees for violating multimedia
    sharing/posting policies

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).
(No Transcript)
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

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

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

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

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

Current Case Law
  • Quon v. Arch Wireless Operating Co. (9th Circuit,
  • 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.

Current Case Law
  • Van Alstyne v. Elec. Scriptorium, Ltd. (4th Cir.,
  • 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

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

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

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

Invasion of Privacy
  • With public employees, might be constitutional
  • 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

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

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
  • 50-70 ban sites such as Twitter, Facebook,
    MySpace while on the clock
  • More block SN sites than shopping, weapons,
    sports, or alcohol sites

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

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
  • No right to privacy

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
  • No anonymous posts
  • Encourage positive use of blogs and sites if
    appropriate for your business or organization
  • For examples

Implications of Cyber-Vetting in Hiring
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

Who is Doing it?
  • 60-70 hiring managers use even before initial
  • 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

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
  • Candidates personality
  • Provocative photos
  • Content about drink and drugs
  • Using text language i.e., LOL

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

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,
  • Identity, authenticity, and accuracy issues

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