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Title: Social Media

1
Social Media the Workplace What Do Employers
Need to Do to Protect Confidential Information,
Prevent Employee Harassment and Obey the Changing
Law on Employee Use of Social Media?
2
Integrated HR Solutions
3
The BASIC Difference

Integrated technology
Reduced costs
Outside expertise
Improved service quality
Re-focus on strategic HR priorities

4
Lawrence Donoghue

Lawrence has been counseling and representing
employers and executives on employment and labor
law matters for over thirty years. He is a
frequent speaker on these topics to business
groups and has been featured on television and in
newspapers.Phone 847-509-9177
Email Ldonoghue_at_ldonoghuelaw.com
Website www.ldonoghuelaw.com

5
Social Media and Employment LawWhy Should
Employers Be Concerned?

In preparation for a recent speech to a group of
health care professionals, I reviewed a talk I
gave to the same group five years before. One of
the topics was use of computers by employees.
There was no mention in the first speech of
Twitter, Google, Facebook or LinkedIn. To the
extent they existed then, they were not an area
of any concern since the use of and access to
such social media were limited.

6
Social Media and Employment Law Why Should
Employers Be Concerned?

As more workers use computers, smart phones and
notebooks and as these items are increasingly
integrated with the employees job duties, the
opportunities for mischief or outright malicious
harm are everywhere. Unfortunately, the employer
is often the one who is hurt or sued what that
happens.
Examples
An employee (Brett Favre) sends sexually explicit
pictures repeatedly to a co-worker via a cell
phone. Co-worker files lawsuit.
Sales employee for a luxury car dealership posts
comments on his Facebook page ridiculing his
employer for giving away hot dogs to customers in
a promotional event. Customers see these
comments, employer fires employee and he files a
claim with the federal government (NLRB) which
the company must now defend. (Knauz Motors in
Illinois)

7
Use of Social Media by Employees. The Four Areas
of Concern for Employers

This is not legal advice. Every situation needs
to be evaluated in light of the facts and the
law. Further, this is an area of constant legal
flux and can be a minefield for the unwary.
Nevertheless, here are the four areas I will
address today.
Using information from social media in hiring
employees.
Preventing harassing activities by employees
through electronic means.
Disciplining employees who use social media to
discuss the terms and conditions of employment or
who post derogatory information about the
business, its owners or managers.
Protecting the companys trade secrets and
confidential information both during and after
the employment relationship.

8
Using Social Media Information in the Employee
Selection Process

As a general rule, employers may use any
information obtained legally in the hiring
decision, provided that the effect of the
selection criteria doesnt discriminate against a
protected group.
Employers can look at social media postings for
the applicant since they were put there by the
applicant and are clearly intended to be in the
public domain. Postings by friends, comments or
information from sources other than the applicant
should only be considered in limited
circumstances or not at all.

9
Using Social Media Information in the Employee
Selection Process

Limit your use of the acquired data to those
parts that concern the applicants qualifications
and truthfulness. This is not easy to do
considering the volume of information posted by
some people, but look for the following
Did the applicant misrepresent herself during the
hiring process? Does she have a criminal
background she failed to tell you about? Did the
applicant lie about educational attainment or
degrees? Was he not forthcoming about his current
job or work status? What about job title?
Ignore those portions that relate to marital
status, sexual orientation, religion, political
affiliations or community activities. If you
would not seek the information on an application
you may not consider it just because it came from
another source.

10
Using Social Media Information in the Employee
Selection Process

The information you find should only be used as
part of the overall hiring decision and not as
the determining factor. If you want to contact
the applicant to get an explanation of apparent
discrepancies then do so. You can even tell the
person the source. No one who posts personal
information on Facebook or LinkedIn can say it is
private and confidential.
This is a new area of the law with very little
precedent but Im satisfied if you stick with
these guidelines youll comply with applicable
laws on employee selection.

11
What Can an Employer Do to Prevent Illegal
Harassment through Social Media?

I mentioned earlier the case involving Brett
Favre. There are many other instances of such
lewd and harassing behavior through the use of
electronic media. In Favres case, he was a
member of the New York Jets and was sending
photographs of his genitalia by cell phone to a
female staff member apparently in an attempt to
induce her to enter into a sexual relationship.
Clearly these actions would fall within the
definition of sexual harassment for which the
employer would be liable.

12
What Can an Employer Do to Prevent Illegal
Harassment through Social Media?

An employers obligation is to first and foremost
inform ALL employees that sexual harassment is
illegal and intolerable. Define what sexual
harassment is and encourage people who have been
harassed to come forward to report any such
behavior.
If you dont have a policy on workplace
harassment , you must prepare one immediately. I
mean today.
A current policy must be amended to explain to
employees that communication through electronic
media is just as intolerable and illegal, even if
posted anonymously.
Be sure to include the following examples of
unacceptable behavior
Circulating dirty jokes through email.
Sending lewd photographs a la Favre.
Posting any sexually related materials on a
co-workers Facebook or other account.
Persistently seeking dates or sexual favors from
a co-worker through text messages or other
communication.
The list is endless and is only limited by
employees imaginations and idle time. If you
have a well drafted policy that all employees are
informed of and agree to, that will serve as the
companys first line of defense should illegal
activity occur.

13
What Can an Employer Do to Prevent Other Illegal
Harassment through Social Media?

Please note that harassing behavior via social
media is not confined to sexual harassment.
If an employee posts jokes, comments or
photographs which are racist, sexist, homophobic
or based on any other protected status, that is
equally illegal and not to be tolerated.
Make sure your policy reflects this. No
exceptions.

14
What Can Employers Do to Limit Employees
Comments about the Company?

For years, the only derogatory remarks employers
had to worry about were anonymous postings on the
bulletin board in the lunchroom.
The bulletin board is now the PC, laptop,
Facebook and cell phone and the lunchroom is the
electronic world. What used to be a minor
annoyance has the potential to mushroom into
lawsuits or investigations of employment
practices.
The federal government, notably the National
Labor Relations Board, has taken notice of the
increase in employees use of social media and
issued several decisions on the subject, none of
which is favorable to employers.
What can an employer do?

15
What Can Employers Do to Limit Employees
Comments about the Company?

Employees do not have an unfettered right to
publish or say anything. Remarks that are
slanderous, libelous or just plain false are not
protected whether they are about the company or
its managers.
Employers may still discipline or discharge
employees who do such things regardless of the
forum for the comments.

16
What Can Employers Do to Limit Employees
Comments about the Company?

However, employees do have a right under the
National Labor Relations Act (NLRA) to engage in
protected, concerted activities for the purpose
of collective bargaining or for mutual aid or
protection. This law is enforced by the National
Labor Relations Board and only applies to private
employers. Managers and supervisors are not
covered by the NLRA, either. Government and
public employees have their own sets of rules
established by their states. Familiarize yourself
with your state law and be aware that states are
likely to base their interpretation of employee
free speech rights on the NLRBs position.
Limiting employees or disciplining them for acts
considered protected, concerted activities is
an unfair labor practice regardless of whether
they are members of a bargaining unit.

17
What Can Employers Do to Limit Employees
Comments about the Company?

The NLRB has an army of regulators and lawyers
who both investigate and prosecute
administratively any employee claims of unfair
labor practices, including those that allege
limitations on protected, concerted activities.
For years, the NLRB only concerned itself with
employees represented by a labor union as the
NLRA contemplated. The proliferation of speech
issues on social media has drawn the Board into
the fray and they spend a good deal of their time
and money processing unfair labor practice
charges whether employees are unionized or not.

18
What Can Employers Do to Limit Employees
Comments about the Company?

What does the NLRB mean by protected, concerted
activities? This means actions engaged in by a
group of employees to discuss the terms and
conditions of their employment. An employee
acting solely on his behalf or posting comments
on an individual Facebook page does not qualify.
Likewise, comments sent just to non-employees are
not protected. But, if you have a group of
employees who have set up their own web page to
complain about company actions, the comments they
make in that forum are protected and the
employees may not be disciplined for them.

19
What Can Employers Do to Limit Employees
Comments about the Company?

Employees participating in email discussions are
also protected so long as the discussions relate
to employment.
The terms or conditions of employment which
employees may discuss include pay, benefits,
actions by management, discipline or employee
terminations, union organizing and working
conditions.

20
What Can Employers Do to Limit Employees
Comments about the Company?

The communication discussing these subjects must
be among employees for the purposes of furthering
their rights and not just a posting by an
individual employee on a website.
Regrettably, several recent decisions by the NLRB
have concluded that sarcastic and disparaging
remarks posted publicly were protected because
the gist of the employees statements concerned
workplace conditions and management practices and
were shared with co-workers.
As currently comprised, the NLRB is very, very
pro-employee and quick to find that any
limitation of employee speech is a violation of
the NLRA.

21
What Can Employers Do to Limit Employees
Comments about the Company?

Employers need to have a policy that addresses
employee speech. This is not optional. Do it as
soon as possible. It will protect your business.
From the outset, the employer must advise
employees that it doesnt intend to limit or
coerce them from engaging in open and honest
discussions about workplace matters among
themselves, regardless of the forum.
Let employees know they can discuss wages,
benefits, working conditions or union organizing
without any fear of discipline by the employer.
They can even talk about how much each others
salary, performance ratings, special benefits or
disciplinary discussions.

22
What Can Employers Do to Limit Employees
Comments about the Company?

But, employers need to advise employees that
their protected, concerted activities may not
interfere with their work duties. Employees are
paid to produce in accordance with the employers
directives.
Tell the employees that libelous, slanderous or
just plain untrue remarks intended to ridicule
co-workers, managers or customers do not fall
within the definition of protected, concerted
activities. Such acts will be cause for
discipline, including discharge. Make this part
of your policy on employee use of social media
and computers.
On a related note, the NLRB has just issued a
workplace poster on this subject that virtually
every private employer must display by April 30,
2012. If you would like a copy please let me know
or you can obtain your own at the NLRB.gov
website.

23
What about Confidential Information or Trade
Secrets? How Can I Force Employees to Protect
Them?

The short answer to this question is that in the
age of the Internet, ubiquitous workplace
computers, Facebook and cell phone cameras, it is
virtually impossible to prevent an unhappy but
determined employee from stealing or distributing
your trade secrets. Sad but true.
There are, however, steps you can take to protect
this information both during and after the
employment relationship.
The Uniform Trade Secrets Act is applicable
throughout the United States and protects an
employers trade secrets from dissemination by
employees, both during their employment and
indefinitely afterward. Employees must be
informed of this law and how it applies to them.
This cannot be repeated often enough.

24
What about Confidential Information or Trade
Secrets? How Can I Force Employees to Protect
Them?

A trade secret is not just something an
employer designates as such. It is a tangible
asset the employer purchased or developed that
gives it a competitive advantage in the
marketplace and which the employer has taken
steps to maintain as confidential. The formula
for Coca Cola is a trade secret. A list of a
companys customers distributed to all employees
on a web site is not.
One of the ways an employer can take steps to
maintain confidentiality is by having ALL
employees sign a comprehensive policy statement
in which they acknowledge their obligations while
employed and afterwards.
I suggest doing this annually with every employee
and immediately at time of hiring along with
other employment documents. Every employee must
have a signed agreement in the personnel file. No
one is exempt.

25
What about Confidential Information or Trade
Secrets? How Can I Force Employees to Protect
Them?

Any time an employee is terminated, whether for
cause, economic reasons or pursuant to a
workforce reduction, the employer must remind
those employees that the obligation to honor the
confidentiality pledge continues after employment
regardless of the reason for separation.
A severance agreement must also contain a pledge
from the former employee that he or she will keep
the trade secrets information secure. Always
include this provision as well as a forfeiture
clause in the event an employee on severance pay
breaches it.
Be exceedingly clear to workers that the company
will take all steps necessary to protect its
confidential trade secrets, including filing
lawsuits or referring cases for criminal
prosecution.

26
What about Confidential Information or Trade
Secrets? How Can I Force Employees to Protect
Them?

Any such policy or pledge must specify that the
commitment extends for an indefinite period of
time and to all forms of communication, social
media, the Internet, web sites, and emails.
Also, make the employee agree that he or she
authorizes the company to investigate any
anonymous postings and that the employee will
cooperate in that investigation.

27
What about Confidential Information or Trade
Secrets? How Can I Force Employees to Protect
Them?

Warn employees of the legal consequences of
violating the Trade Secrets Act or their pledges
to honor your confidentiality agreement. Be ready
to go to court, if necessary, to enforce the
employers rights to maintain the trade secret
from disclosure.
Given the proliferation of means of
communications, there is no perfect legal way to
protect all information. Work closely with your
technical support staff, human resources and your
attorneys to protect your business.