Social Media THE RIGHT WAY

1. Social Media THE RIGHT WAY February 5, 2014

2. JUST DO IT. BUT DO IT RIGHT • Know It. • Own It. • Secure It.

3. WHAT IS SOCIAL MEDIA? Blogs and micro blogs (Twitter, Tumblr). Social networking sites (Facebook/Google+/LinkedIn). Content communities (Youtube, Flickr).

4. Intellectual Property & social media • Social media account information may constitute a protectable trade secret. • Christou v. Beatport, LLC, 849 F. Supp. 1055 (D. Colo. 2012). • Be aware of how social media may impact the enforcement of your intellectual property rights. • Jack Daniels/Whiskey Rebellion blog.

5. FTC Enforcement matters • FTC Act Section 5/16 CFR §255.5. • Companies should ensure that persons performing social media marketing on their behalf disclose relationship with Company. • In the matter of Reverb Communications, Inc. (2010). • In the matter of Legacy Learning Systems, Inc. (2011).

6. Free Speech CONCERNS • The First Amendment provides some protection to government employees in connection with their social media use. • Pickering v. Board of Education (U.S. S.Ct 1968) – On matters of public concern, interests of employee /commenter are balanced against gov’t employer’s interest in promoting efficiency of public services. • Bland v. Roberts (4th Cir. 2013) – Hitting “like” button on Facebook may be protected speech. • Some state laws also provide a measure of free speech protection for employees that would apply to social media use (e.g., Conn. & Cal.). • Conn. bars employers from disciplining an employee for exercising “First Amendment” rights, as long such exercise “does not substantially inter­fere with job performance or working relationship with employer”. Conn. Gen. Stat. §31-51q. • Cal. prohibits employer from (a) forbidding employ­ees from engaging in political activity or (b) using coercion to influence political activity. Cal. Labor Code §§1101 – 1102.

7. Federal Law: THE SCA & THE CFAA • Ehling v. Monmouth-Ocean Hospital Service Corp. (U.S.D.Ct.N.J. 2013) – The Stored Communications Act (the “SCA”) protects employee’s private Facebook wall posts. • The Computer Fraud & Abuse Act (the “CFAA”) prohibits accessing protected computers without authorization. 18 U.S.C. §1030. • Eagle v. Morgan (E.D. Penn. 2012) – Former employee failed to establish damages under the CFAA for unauthorized access of her LinkedIn account by former employer.

8. Social media in hiring - risks May reject (or hire) based on incorrect information. Applicant can assert that employer considered improper information (e.g., protected class status). Some U.S. states prohibit employers from discriminating against employees/applicants for lawful use of lawful products during nonworking hours (NC, NY, Colorado, others). May run afoul of legislation prohibiting request for social media passwords.

9. State Password protection statutesArk, Cal, Colo, Ill, Maryland, Mich, Nevada, NJ, NM, Oregon, Utah, Vermont, Washington Prohibit requiring or requesting employee/applicant to disclose username or password to access personal social media. Also prohibit requiring employee/applicant from accessing in employer’s presence or divulging contents of personal social media. Many (but not Illinois) have exceptions for investigations protecting confidential and proprietary company information. Critical that company does not allow employees to use personal email for work.

10. Practical advice: using social media in hiring Think twice before doing it. Think twice before requesting a password, and then check with your attorney. Include release/authorization in applications (if permitted by law). Check terms and conditions of website being accessed. No Pretext (do not falsify, impersonate, retrieve keystrokes to get access). Focus on job-relatedness of information. Only give decision maker relevant information. Retain information used for hire/no-hire decision. Be consistent (don’t discriminate).

11. Social media DURING EMPLOYMENT: own it • Own the Company’s social media. • Don’t permit employees to use personal social media for business. • Don’t leave all responsibility all to one person (HMV). • Know what is on your social media. • Don’t forget about it. Periodically check on it. Save it. • Have a social media policy!

12. Key strategy: the social media policy • Every Company should have one. • Include appropriate limits(nondisclosure, harassment, employee endorsements, etc.). • Make clear who owns what. • Prohibit use of company name in personal twitter handles, blog names, etc. • Disclose company’s right to inspect (to the extent permitted by law) to ensure compliance. • Inform employees of monitoring and no expectation of privacy if company resources are used. • Have employee sign acknowledgment and consent. • Beware the NLRB.

13. NLRB: Unlawful Policies • “Don’t release confidential guest, team member, or company information” on social media sites.” • “Make sure that any photos, music, video, or other content you are sharing is legally sharable or that you have the owners permission.” • “Offensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline, even if they are unintentional.”

14. NLRB: Unlawful Policies “The Corporate Communications Department is responsible for any disclosure of information to the media regarding [Employer] and its activities. Unless you receive prior authorization from the Corporate Communications Department to correspond with members of the media or press regarding [Employer] or its business activities, you must direct inquiries to the Corporate Communications Department.”

15. Posts that Harass Co-Workers Hispanics United of Buffalo, Inc., Case No. 3-CA-27872 (N.L.R.B. Sept. 2, 2011). Facebook post: • Discussions about another employee’s criticisms of the employees’ work performance were still protected. • Termination and policy violated NLRA.

16. Can Employees Go Too Far? • “Bob is such a NASTY MOTHER F****R don’t know how to talk to people!!!!! F**k his mother and his entire f****g family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” • Protected as activity by two or more employees for mutual aid or protection regarding terms or conditions of employment and was not egregious enough to cause the employee to lose the NLRA’s protections.

17. Can Employees Go Too Far? “…let them figure it out and they start loosin’ kids I ain’t help’n HAHA.” “…we’ll take advantage, play music loud … teach kids how to graffiti up the walls…. I don’t feel like being their b***h and making it all happy-friendly middle school campy. Let’s do some cool s**t, and let them figure out the money. No more Sean. Let’s f**k it up.” “HAHA we gone have hella clubs and take the kids.” “[H]ahaha! F**k em. Field trips all the time to wherever the f**k we want!” Although concerted in voicing disagreement with management, NOT protected under the NLRA. “[T]he question is whether the conduct is so egregious as to take it outside the protection of the Act, or of such character as to render the employee unfit for further service.”

18. QUESTIONS?

19. Todd C. Taylor (704) 331-1112 toddtaylor@mvalaw.com Karin M. McGinnis (704) 331-1078 karinmcginnis@mvalaw.com Benjamin P. Fryer (704) 331-1163 benfryer@mvalaw.com Thank You!