What’s Not to LIKE About Social Media at Work

1. What’s Not to LIKE AboutSocial Media at Work Mark D. Tolman mtolman@joneswaldo.com (801) 534-7232 www.joneswaldo.com The information provided during this presentation is provided for general informational purposes only and should not be construed as legal advice or legal opinion. You are encouraged to consult with your employment counsel concerning any specific legal questions you may have.

2. 2010 EEOC STATS • There’s lots to like about Social Media in the workplace • New avenue to market and promote your business • An effective recruiting tool • Opportunities for interaction and networking • But there’s lots not to like too…

3. 2010 EEOC STATS • Social Media Landmines • Employees create a few social media landmines… • Drain on productivity • Means for harassment and discrimination • Risk of disclosure of confidential information • Platform for disparagement • Employers do too… • Inappropriate use as an applicant/employee screening tool • Theater for sock puppetry

4. 2010 EEOC STATS • Mapping Out Social Media Landmines with Clear Policies • Avoid the risks of using social media as a screening tool. • Learning too much about applicants and employees can be harmful to your health. • Limit your employees’ disruptive online behavior without running afoul of the National Labor Relations Board (NLRB). • Policies must preserve your employees’ right to engage in “concerted activity” online. • Take advantage of social media as a platform to market your company, without ticking off the Federal Trade Commission (FTC).

5. Social Media as a Screening Tool 2010 EEOC STATS

6. 2010 EEOC STATS • Social Media as a Screening Tool • Be careful about what you learn online. • Tempting, of course, because there is a host of helpful information online: • Evidence of good or bad judgment • Details about experience • But when you are defending against a discrimination charge, ignorance truly is bliss. • Social media sites may reveal many protected characteristics: • Race, religion, color, national origin, pregnancy, disability, age, military status, etc. • “Great job interview today. Maybe I can finally get insurance benefits to care for my illness.”

7. 2010 EEOC STATS • Social Media screening may cause problems under GINA. • GINA—Genetic Information Nondisclosure Act—prohibits employers from acquiring genetic information. • Not uncommon for people to post genetic information. • For example, an applicant or employee may discuss a family history of cancer or other illness.

8. 2010 EEOC STATS • Social Media screening may also run afoul of state privacy laws. • A few states have adopted social media privacy laws that make it illegal for an employer to ask an employee for their social media account information (i.e., to require that an applicant or employee “friend” an employer or otherwise grant access to their account). • California, Illinois, Michigan, Maryland, New Jersey • There is no such law in Utah. Not yet anyway.

9. 2010 EEOC STATS • The EEOC has weighed in on screening tools • Online screening tools, like other background checks, may be used so long as only job-related factors are considered. • Easier said than done. How do you prove that only job-related factors were considered?

10. 2010 EEOC STATS • The EEOC has weighed in on screening tools. • Consider what David Lopez, EEOC general counsel, has to say about social media as a screening tool: • “It’s important to identify discriminatory hiring practices and policies that are excluding people unlawfully from the workplace. . . . I think [employers] need to be very cautious doing online background checks. The employer should examine how it recruits and hires new people. Once you start digging, it’s not always passive.” Houston Chronicle, April 2011

11. 2010 EEOC STATS • Is Social Media screening worthwhile? • SHRM published a survey in August 2011 concluding that few employers use social networks to screen job candidates. • 18 % of polled employers use social media to screen applicants. • Only 30% of polled employers actually eliminated someone from consideration based on information obtained through social media screening.

12. 2010 EEOC STATS • Social Media Screening Policy Options • Just don’t do it. Employers survived for years without relying on social media to screen applicants and keep up on employees. You can too. • But if you just cannot resist…then establish clear, written procedures. • You may have to justify your job-related considerations. Documentation should plainly show the reasons for any employment decision. • Use a structured process with a clear division of responsibility for HR professionals and hiring managers. • Trained HR professionals examine social media and pass along only job-related information to decision makers.

13. QUESTIONS?

14. Limiting Disruptive Behavior 2010 EEOC STATS

15. Limiting Disruptive Behavior 2010 EEOC STATS

16. Limiting Disruptive Behavior 2010 EEOC STATS • What can an employer do when employees speak ill of the workplace, the company, their coworkers or managers? • It depends on whether the employee is engaged in behavior that is protected by the National Labor Relations Act (NLRA). • The National Labor Relations Board (NLRB) has provided guidance for when an employee’s social media behavior is protected by the NLRA and when an employer’s social media policies run afoul of the NLRA.

17. 2010 EEOC STATS National Labor Relations Board What is it? An independent federal agency like the EEOC. Members are political appointees and tend to reflect the party ideology of the President who appoints them. What does it do? For our purposes, it mainly enforces the federal National Labor Relations Act (NLRA). “The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren't in a union.”  (NLRB website) (emphasis added)

18. 2010 EEOC STATS National Labor Relations Board “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.” -Sec. 7, NLRA Key phrase = acting in concert

19. 2010 EEOC STATS National Labor Relations Board Is this acting in concert?

20. 2010 EEOC STATS National Labor Relations Board The NLRB focuses on three questions when deciding if concerted activity is protected: Is the activity concerted? Generally, this requires two or more employees acting together to improve wages or working conditions. But the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others. Does it seek to benefit other employees? Will the improvements sought – whether in pay, hours, safety, workload, or other terms of employment – benefit more than just the employee taking action?  Or is the action more along the lines of a personal gripe, which is not protected? Is it carried out in a way that causes it to lose protection? Reckless or malicious behavior, such as sabotaging equipment, threatening violence, spreading lies about a product, or revealing trade secrets, may cause concerted activity to lose its protection.

21. 2010 EEOC STATS • Limiting Disruptive Activity without Impinging on Concerted Activity • NLRB takes the position that concerted activity on social media sites is protected—even though such activity may be open to the rest of the world. • Trio of opinions from the NLRB General Counsel’s Office: August 18, 2011, January 25, 2012, & May 30, 2012 • The first two opinions focus on disciplinary decisions and the last on social media policies.

22. 2010 EEOC STATS • Limiting Disruptive Activity without Impinging on Concerted Activity • Examples from NLRB opinions • One employee tells a second employee that her performance is lacking and that they should take the issue up with their supervisor. Before the supervisor meeting, the second employee takes to Facebook to complain about the first employee and to ask her co-workers for input. Four co-workers weigh in. Several posts are sarcastic and even profane. • Employer terminates the second employee and the four other employees who participated in the Facebook exchange. • Did the employer violate Section 7? • Yes. NLRB calls this a textbook example of concerted activity. Sarcasm and swearing was not malicious.

23. 2010 EEOC STATS • Limiting Disruptive Activity without Impinging on Concerted Activity • Examples from NLRB opinions • An employee takes to Facebook to complain about her supervisor – she calls him a “scumbag.” The employee does not seek input from her co-workers, but she gets it – her post drew several supportive responses from co-workers, which led to more negative remarks by the employee about her supervisor. Employer terminated this employee because she disparaged her supervisor and violated a policy that prohibits depicting the company in any media without prior permission. • Did the employer violate Section 7? • Yes. Policy was overbroad and did not contain an express exception for “section 7” conduct. And the name-calling was not malicious and unaccompanied by any physical threats.

24. 2010 EEOC STATS • Limiting Disruptive Activity without Impinging on Concerted Activity • Examples from NLRB opinions • A bartender posted a few disparaging remarks about the bar (his employer) on his Facebook page—he said that he had not received a raise in five years and that the bar’s customers were “rednecks.” None of his co-workers respond. The employer terminates his employment. • Did this employer violate Section 7? • No. The employee was merely griping about work, and did not attempt to engage any coworkers in a conversation about the terms and conditions of work.

25. 2010 EEOC STATS • Limiting Disruptive Activity without Impinging on Concerted Activity • Now back to our question: What can an employer do when employees speak ill of the workplace, the company, their coworkers or managers? • Takeaways from the first two NLRB opinions: • Mere griping, without involvement or solicitation of co-workers , is not protected by the NLRA. • But when two or more employees are talking about work—even in a negative way and even when the rest of the world can see it on social media—you should tread lightly.

26. 2010 EEOC STATS • Drafting an effective Social Media Policy Without Impinging on Concerted Activity • Third NLRB opinion (May 2012) focused on social media policies that violate Section 7. • Two step inquiry to determine if a policy is compliant. • Does the policy explicitly restrict Section 7 protected activities (e.g., “do not discuss your compensation with co-workers)? Then it is unlawful. If not, … • Would an employee reasonably construe the policy to prohibit any Section 7 activity? • Consider whether the policy was adopted in response to Section 7 conduct. • Or whether it has been applied to Section 7 conduct.

27. 2010 EEOC STATS • Drafting an effective Social Media Policy Without Impinging on Concerted Activity • NLRB tells us the key to an effective social media policy: • Context • Your policy should avoid sweeping bans, refer when appropriate to other detailed provisions (like your anti-harassment policy), and plainly define any prohibited behaviors.

28. 2010 EEOC STATS • Sample Policies from May 2012 NLRB Opinion • Defamation Policies • Unlawful: You may not make disparaging or defamatory comments about [the Company], its employees, officers, directors, vendors, customers, partners, affiliates, or our or their products/services. • Unlawful: Be sure that your posts are completely accurate. • Lawful: Never post information or rumors that you know to be false about [the Company], fellow associates, members, customers, suppliers or people working on behalf of [the Company] or competitors.

29. 2010 EEOC STATS • Sample Policies from May 2012 NLRB Opinion • Work and Play Well with Others • Unlawful: Adopt a friendly tone when engaging online. Don’t pick fights. When engaging others online, adopt a warm and friendly tone that will encourage others to respond to your postings and join your conversations. • Unlawful: Think carefully about “friending” co-workers on external social media sites. • Lawful: Harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers.

30. 2010 EEOC STATS • Sample Policies from May 2012 NLRB Opinion • Nondisclosure/Confidentiality Policies • Unlawful: Do not comment on legal matters, including pending litigation. • Unlawful: You should never share confidential information with another team member unless they have a need to know the information to do their job. • Unlawful: If you need to share confidential information with someone outside the company, confirm there is proper authorization to do so. • Lawful: Maintain the confidentiality of [the Company’s] trade secrets and confidential information. Trade secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.

31. 2010 EEOC STATS • Sample Policies from May 2012 NLRB Opinion • A “Savings Clause” will not save your policy • Example: “This policy will not be construed or applied in a manner that improperly interferes with employees’ rights under the National Labor Relations Act.” • NLRB says such a clause “does not cure” otherwise unlawful provisions of an employer’s social media policy.

32. 2010 EEOC STATS • Sample Policies from May 2012 NLRB Opinion • NLRB reviewed a total of 7 social media policies. And dissected, tore apart, and criticized as unlawful all but one of them. • But the NLRB gave a gold star to the final policy it reviewed, concluding “that the Employer’s entire revised social medial policy . . . is lawful.” The NLRB attached this entire “lawful” policy to its May 2012 report. • If imitation is the sincerest form of flattery, consider adopting whole cloth this NLRB-approved policy. • A link to the NLRB’s final social media report—including its approved policy (pages 22-24)—is found on the NLRB website at: • http://nlrb.gov/news/acting-general-counsel-releases-report-employer-social-media-policies

33. 2010 EEOC STATS • Gold Star Policy

34. QUESTIONS?

35. No Sock Puppets at Work! 2010 EEOC STATS

36. 2010 EEOC STATS • What is an online sock puppet? • Online sock puppetry is the act of creating a fake online identity to praise, defend, or create the illusion of support for one’s self or company (e.g., on a comment or review board). • Sock puppets pose as independent third parties who are unaffiliated with the disguised puppeteer. • Sock puppetry can land you in hot water with the Federal Trade Commission (FTC) and lead to hefty fines.

37. The FTC is fine with these work sock puppets. 2010 EEOC STATS

38. But not these ones… 2010 EEOC STATS • John Mackey, CEO of Whole Foods as “Rahodeb” • As “Rahodeb,” he posted more than 1,000 comments on a Yahoo Finance message board over seven years, championing his own company and attacking his competitor, Wild Oats Market. Once, he even wrote: “I like Mackey’s haircut. I think he looks cute!” • Whole Foods later acquired Wild Oats and many, including the FTC, thought Mackey’s sock puppetry crossed the line. • http://www.nytimes.com/2007/07/12/business/12foods.html?_r=0 • For this and other reasons, the FTC filed a lawsuit against Whole Foods to block its acquisition of Wild Oats. After a costly battle, much of the acquisition was unwound. • http://www.ftc.gov/opa/2009/03/wholefoods.shtm

39. But not these ones… 2010 EEOC STATS • Legacy Learning Systems – sold DVD guitar lessons online • Affiliate marketers falsely posed as ordinary consumers and/or independent reviewers who endorsed Legacy’s products on blogs or articles, with links to Legacy’s website. These marketers were paid for every sale they generated. But of course, they made no mention of this bias in their reviews and endorsements. • Legacy had to pay a $250,000 fine to the FTC. • http://www.ftc.gov/opa/2011/03/legacy.shtm

40. 2010 EEOC STATS • FTC targets sock puppets in its 2009 revised Guide. • “Material connections” must be disclosed to the consumer in online advertising. For example: • Affiliate bloggers who receive pay for an endorsement. • Employees who make statements about products online. • Learn more about the revised FTC Guide here: • http://www.ftc.gov/opa/2009/10/endortest.shtm

41. 2010 EEOC STATS • Adopt a no-sock-puppets policy. • Consider the following example taken from the NLRB’s “gold star” social media policy: • Express only your personal opinions. Never represent yourself as a spokesperson for Employer. If Employer is a subject of the content you are creating, be clear and open about the fact that you are an associate and make it clear that your views do not represent those of Employer, fellow associates, members, customers, suppliers or people working on behalf of Employer. If you do publish a blog or post online related to the work you do or subjects associated with Employer, make it clear that you are not speaking on behalf of the Employer. It is best to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the views of Employer.”

42. QUESTIONS?Mark D. Tolmanmtolman@joneswaldo.com(801) 534-7232www.joneswaldo.com