Social Media: A Double-Edged Sword (the ever evolving world….LOL)

1. Social Media: A Double-Edged Sword(the ever evolving world….LOL) Bret Strong, Managing Shareholder The Strong Firm, P.C. November, 2013

2. Part 1 An Overview of Social Media Issues

3. Overview of Social Media Issues • What Is It?

4. Overview of Social Media Issues(Think of the resources good and bad devoted to it……..) Who Uses It And Why Should You Care? 1+ billion recognized users 933 billion minutes per month spent on Facebook 100+ million active users 230 million tweets per day 225+ million registered users 2 million registered businesses

5. Overview of Social Media Issues

6. Overview of Social Media Issues • Major Legal Considerations: • National Labor Relations Act • Active and pending State laws • Active and pending Federal laws • Secondary considerations: • Americans with Disabilities Act • Health Insurance Portability and Accountability Act

7. Overview of Social Media Issues • So What Can You Do? • Know What Laws Exist and Follow the Evolving Legal Trends • Perform DAILY Searches of Company, Executives, Key Terms and Employees • Develop and Follow an Effective Social Media Policy • Implement Your Policy and Train Employees on Their Rights and Responsibilities With Social Media

8. Part 2 The NLRB and Developing Laws

9. Section 7 of the NLRA • Section 7 of the NLRA provides that employees have a right to “engage in concerted activity for purposes of collective bargaining or for other mutual aid and protection” • Must be undertaken by 2 or more employees or by 1 employee with the authority of others; AND • Must relate to the terms and conditions of employment • But, even “concerted,” does not protect: • Malicious or reckless actions • Employees who reveal company trade secrets or make threats of violent behavior

10. NLRB General Counsel Memos Three reports covering several cases and various company social media policies. Some cases involved employees’ use of Facebook, finding that the employees were engaged in "protected concerted activity" because they were discussing terms and conditions of employment with fellow employees. Other cases involved Facebook or Twitter posts, and the activity was found to be unprotected.

11. NLRB General Counsel Memos • The remaining cases involved discharges of employees after they posted comments to Facebook. Several discharges were found to be unlawful because they flowed from unlawful policies. • The reports underscored two main points regarding the NLRB and social media: • Employer policies can’t be overly broad • Mere gripes are not generally protected • Be careful of “interaction” between employees/managers and elected officials/government workers More information at: www.nlrb.gov

12. Costco Decision • Costco Wholesale Corp., 34-CA-012421 (Sept. 7, 2012) • Costco had a policy banning workers from posting statements online that harmed the company’s reputation • The court ruled that this was a violation of the employees’ Section 7 rights • This is an example of a policy where the restriction on speech was too broad, and without narrower language, it appeared to prohibit both protected and unprotected speech

13. BMW Decision • Knauz BMW, 358 Case No. 13-CA-046562(Sept. 28, 2012) • A sales associate was fired after posting Facebook pictures and comments of an event unrelated to his employer or fellow employees • The firing was upheld because the postings were not deemed concerted activity, so he was not protected by the NLRA • However, this case also ruled broad prohibitions against disrespectful conduct and language was a violation of Section 7

14. Hispanics United of Buffalo Inc. Decision • Hispanics United of Buffalo Inc., Case No. 13-CA-027872(Dec. 14, 2012) • Several employees of a non-profit were fired after posting comments and responses on Facebook criticizing their boss • “Lydia Cruz, a coworker feels that we don’t help our clients enough at [Respondent]. I about had it! My fellow coworkers how do u feel?” • The firings were overruled because the employees’ comments were deemed concerted activity discussing work conditions

15. What Can My Policy Limit?

16. Potential Laws

17. Did They Really Say That?

18. Did They Really Say That?

19. Did They Really Say That?

20. Did They Really Say That?

21. Did They Really Say That?

22. Did They Really Say That?

23. Did They Really Say That?

24. Did They Really Say That?

25. Part 3 Crafting a Social Media Policy

26. Crafting a Social Media Policy

27. Crafting a Social Media Policy

28. Crafting a Social Media Policy • NLRB has ruled favorably for social media policies that: • Restrict social media usage when necessary to ensure compliance with securities regulations or other laws • Prohibit employees from using or disclosing confidential and/or proprietary information • Prohibit employees from discussing in any form of social media trade secrets

29. Conclusion Power of Social Media

30. Questions? Bret L. Strong Phone Number: 281-367-1222 Fax Number: 281-210-1361bstrong@thestrongfirm.com

31. More Information and Presentation… To view this presentation again, and to access other useful legal information, please visit The Strong Firm at our website: http://www.thestrongfirm.com/ Bret L. Strong Phone Number: 281-367-1222 Fax Number: 281-210-1361bstrong@thestrongfirm.com