By: John G. Kruchko, Esq. September 12, 2011 Kruchko & Fries © 2011 Privileged and Confidential 1

Definition: web-based media and mobile technologies media used for social interaction. Three popular websites used: 1. Facebook2. Twitter3. LinkedIn Privileged and Confidential Kruchko & Fries ©

Libel or defamation- Courtney Love; Landlord suit. Termination – Chrysler situation. Social media presents liabilities for an individual and an employer. For an individual: (Examples) Privileged and Confidential Kruchko & Fries ©

5 main areas an employer should be aware of. 1. Company Endorsements on Social Media Sites 2. N.L.R.A. 3. Harassment and Anti-discrimination Statutes 4. Retaliatory Conduct 5. Defamation Privileged and Confidential Kruchko & Fries ©

 FTC regulates online advertising. ◦ Endorsement: “any advertising message that a consumer reasonably believes reflects the honest opinions, findings, beliefs, or experiences of someone other than the advertiser.”  E.g., writing “This is the best service I’ve ever had” on a blog.  The FTC prohibits an endorser from conveying or implying any representation that would be deceptive, or contains false or unsubstantiated statements. Guideline #1 Emphasize that any person who might be an endorser must disclose any company connections. Privileged and Confidential Kruchko & Fries ©

 National Labor Relations Act applies to non- unionized employees.  August18, Report issued by General Counsel  This report discusses two unclear legal areas of concern: ◦ 1. Whether online posts are protected concerted activity; and ◦ 2. When social media policies might be an interference with Section 7 rights. Privileged and Confidential Kruchko & Fries ©

 MEYERS decisions- Factors to consider: 1.Is the substance of the post about a term or condition of employment? 2.Has management ever been informed of the substance of the employee’s complaint? 3.Does the Facebook/Twitter post arise out of a conversation between employees? Was it an “outgrowth of employee concerns”? 4.Does the communication seek to involve other employees or induce group action? RIGHTS OF EMPLOYEES: Sec. 7. Employees shall have the right … to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,…. Sec. 8. (a) It shall be an unfair labor practice for an employer-- (1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7;… When is posting on Facebook or Twitter protected concerted activity? Privileged and Confidential Kruchko & Fries ©

Main test for determining the lawfulness of a social media policy: Lutheran Heritage Two Step test: (1)Does the rule explicitly restrict Section 7 activities? (2) If not, the rule is unlawful only upon a showing that : Employees would reasonably construe the language to prohibit Section 7 activity; The rule was promulgated in response to union activity; or The rule has been applied to restrict the exercise of Section 7 activity. Privileged and Confidential Kruchko & Fries ©

Unlawful Policy: Lawful Policy: Rule 4- Employees are prohibited from using any social media that may violate, compromise, or disregard the rights and reasonable expectations as to privacy or confidentiality of any person or entity Rule 5- Employees are prohibited from any communication or post that constitutes embarrassment, harassment or defamation of the [Employer] or of any [Employer] employee, officer, board member, representative, or staff member. Rule 6- Employees are prohibited from making statements that lack truthfulness or that might damage the reputation or goodwill of the [Employer], staff or employees. Guideline 3- Employees are precluded from pressuring their coworkers to connect or communicate with them via social media. Privileged and Confidential Kruchko & Fries ©

Adverse employment action based on certain personal information is unlawful. Title VII of the Civil Rights Act Age Discrimination In Employment Act Genetic Information Nondiscrimination ActImmigration Reform and Control Act Americans with Disabilities ActPregnancy Discrimination Act USERRA State and local laws Statutes prohibiting discrimination: Privileged and Confidential Kruchko & Fries ©

 National Labor Relations Act: ◦ Applies to both unionized and non-unionized employees. Two main areas of legal contention: 1. When online posts are concerted protected activity; Meyers decisions 2. When social media policies violate Section 7 rights. ◦ Lutheran Heritage Federal Anti-Discrimination statutes are numerous: Adverse employment action based on certain personal information is unlawful. There are a number of federal statutes prohibiting discrimination: Title VII of the Civil Rights Act Age Discrimination In Employment Act Genetic Information Nondiscrimination Act Immigration Reform and Control Act Americans with Disabilities Act Pregnancy Discrimination Act USERRA State and local laws Guideline #2: Beware of how you respond to unfavorable social media posts, your response could be unlawful discrimination/retaliation, or violate an employee’s rights under the NLRA. Privileged and Confidential Kruchko & Fries ©

Federal statutes generally prohibit retaliation, or any adverse conduct “against any individual who made a charge, testified, assisted, or participated in” a Title VII complaint. Unfriending = Online Cold Shoulder Posting an unflattering picture Posting a comment about the individual Is this retaliation? Possibly. By itself, probably not. With other questionable conduct, probably. Guideline #3: Beware that information posted by your employees or their agents online in the “virtual world” can be unlawful in the “real world.” Privileged and Confidential Kruchko & Fries ©

Defamation: damaging an individual's reputation by publishing a statement to a third-party (i.e., one or more individuals). Why should an employer be concerned? Vicarious Liability- An employer is liable for the conduct of an employee made within the employee’s scope of employment. E.g., Chrysler situation Test for defamation: 1)False statement 2) That is published (communicated to a third- party) 3) Damages/causes injury to the plaintiff’s reputation. Guideline #4: Social media posts can be defamatory; and an employer could be liable for their employees' conduct. Privileged and Confidential Kruchko & Fries ©

Create a social media policy that is realistic and enforceable. Do NOT try to indirectly access an employee’s profile. Do NOT friend your subordinates. Do not ask for your employees’ or an applicants’ social media password. Educate Your Employees Privileged and Confidential Kruchko & Fries ©

A few rules to follow regarding a policy: The policy should be realistic and NOT overbroad. Reinforce that real world conduct is unacceptable in the “virtual” world too. Company connections to endorsements must be disclosed. Add examples of prohibited conduct. Add a disclaimer! Privileged and Confidential Kruchko & Fries ©

Privileged and Confidential Kruchko & Fries ©