Presented by: Robert J. Tomaso November 13, 2013 Social Media Presented by: Robert J. Tomaso November 13, 2013

Social Media

New Challenges of Social Media 50% of people globally access a social network everyday 95 million tweets are posted every day 175 million Facebook Users log on to Facebook every day If Facebook were a country, it would be the world’s third largest and two times the size of the U.S. population Polls estimate that between 45-80% of employers use social media for recruitment

Social Media: A Tool for Recruitment Issues: Language used can suggest an offer of employment Target audience can suggest disparate impact Comments and pictures can suggest discrimination

Social Media: A Tool for Recruitment Recommendations: Include an Equal Employment Opportunity Policy on any company web pages Make sure your job posting and descriptions cannot be construed as offers of employment Do not use language/photos that suggest a preference for a certain age, gender, race, etc. Use a variety of sources to recruit candidates

Controlling Employees’ Use of Social Media During Employment Recommendations: Update other policies Behavior/Discipline Policies Fraternization Policies Advertising Policies (FTC Issues) Be consistent when applying policies

Discipline and Discharge Decisions Using Social Media

Discipline and Discharge Decisions Using Social Media Starbuck’s Barista: Fired after posting disparaging “Rant Song” on YouTube Washington Wizards’ Player: Suspended after joking about bringing guns into the locker room on Twitter Virgin Atlantic Crew Members: Discharged after posting disparaging comments about passengers on Facebook KFC Employees: Discharged after turning a restaurant sink into a hot tub and posting pictures on MySpace

Social Media Evidence United States v. Hill “. . . pictures from Smith’s Facebook profile depict Smith in possession of, and displaying, large quantities of cash.”

The NLRB and Social Media “Facebook Firings” are increasing Not Just Unionized Employees Is the Speech “Protected or Concerted Activity?” Is it General or Specific Employees v. Customers Supervisors

The NLRB and Social Media Supervisors Karl Knauz Motors Mocking accident Jointly owned dealership not protected

The NLRB and Social Media Bettie Page Clothing Facebook discussion protected (and discharges improper) because it concerned getting an employee handbook

How Can You Get Help? Counsel on individual situations Examine the context of the speech Assist in decision-making Draft Social Media/Internet Usage Policies Train employees on social media guidelines

NLRB Approved Policy Language “Employees are prohibited from posting or displaying comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”

A New Helpful Case Gatto v. United Airlines Individual Plaintiff deactivated social media (Facebook account) evidence that contradicted damage request after defendant company subpoenaed records Sanctions against plaintiff (draw negative inference against plaintiff) “spoliation instruction”

THE MISUSE OF THE EMPLOYER’S COMPUTER

New Jersey Supreme Court Stengart v. Loving Care New Jersey Supreme Court March 30, 2010

General Rules Employees have no reasonable expectation of privacy. . . Computer Use Policies to Reinforce

Facts of Loving Care A company-owned laptop and work email address A computer use policy in place Stengart used the laptop to access personal Yahoo! Email account and send messages to personal lawyer

Facts of Loving Care Attorneys obtained and reviewed the personal emails during the course of discovery in underlying case Disclosed the existence of emails in response to discovery requests Refused to return to Plaintiff

The Holdings Stengart had a reasonable expectation of privacy in those emails despite the existence of the Policy Loving Care’s lawyers violated New Jersey RPC by continuing to review the emails without notice to Stengart

A Reasonable Expectation The court reasoned that the Policy was ambiguous as to treatment of personal, web-based email accounts The Court also relied on the fact that employees were not told the browser software would record internet activity that could be retained and searched.

EIGHT WAGE AND HOUR TRAPS

Eight Wage & Hour Traps Automatic Meal Period Deductions Technology and Continuous Workday Travel Time and the Continuous Workday Calculating the Regular Rate

Eight Wage & Hour Traps (Cont.) 5. Rounding 6. Donning and Doffing 7. Misclassifications 8. Unpaid Interns