Social Media/ Technology in the Workplace Francisco J. Ortega

Social Media and Technology Facebook Statistics 955 million active users as of June 2012 During March 2012, on average, 398 million users were active with Facebook on at least six of the seven days of the week. More than 125 billion friend connections on Facebook at the end of March 2012. On average, more than 300 million photos are updated to Facebook per day. On average, there are 3.2 billion “likes” and comments generated by Facebook users per day.

Social Media and Technology Twitter Statistics There are 100 million active Twitter users; 50% of these users log in daily. 11 Twitter accounts created every second. On a busy day, Twitter sees 175 million tweets. Twitter is ranked one of the ten most visited websites worldwide. Twitter handles more search queries per month than Yahoo and Bing combined (24 billion).

Social Media and Technology Range of Online Applicant Screening Google candidates for publicly available information “Shoulder surfing” – asking the job candidate to log onto a social media website while the employer looks over the candidate’s shoulder Asking candidates to “friend” them on Facebook to access info Requesting candidates to provide their social media passwords What are the pitfalls? IT CAN BE SEEN AS A PRETEXT FOR DISCRIMINATION!!! Employer may learn about the candidate’s religion, national origin, age, disability, pregnancy, sexual orientation, or other protected health info Also, employer may learn about employee’s protected “concerted activities.”

Social Media and Technology Is this Illegal? Two U.S. senators asked the U.S. Attorney General and EEOC to investigate this employment practice. Stored Communication Act (“SCA”), 18 U.S.C. § 2701 Prohibits intentional access to electronic info w/o authorization or intentionally exceeding that authorization Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030 Prohibits intentional access to a computer w/o authorization or obtain info Supervisors may also be subject to civil Liability!!! Pietrylo v. Hillstone Restaurant Group (D.N.J. 2009) Konop v. Hawaiian Airlines, Inc. (9th Cir. 2002)

Social Media and Technology Supervisors may also be subject to civil Liability!!! Pietrylo v. Hillstone Restaurant Group (D.N.J. 2009) Employee created chat group on MySpace accessed by invitation by other employees. Supervisor asked other employees to provide him their password to obtain access and later fired the employee. Employee sued his employer under the Stored Communications Act (“SCA”) and WON! Jury awarded employee compensatory and punitive damages. Konop v. Hawaiian Airlines, Inc. (9th Cir. 2002) Employee created website, which was only available to co-workers, where he criticized company. Company VP asked employee to give him password for website. Court found that this violated the Stored Communications Act (“SCA”) and constituted an unfair labor practice.

Social Media and Technology Pending Legislation Many states have pending legislation to prohibit this practice. Illinois, Maryland, and California passed new laws this year. Washington, Delaware, Massachusetts, Michigan, Minnesota, and New Jersey have pending legislation. Federal legislation has been introduced. Congress introduced Social Networking Online Protection Act (“SNOPA”) on April 2012. If passed, SNOPA would prohibit current and potential employers from requiring username, password, or other access to online content. It would also apply to schools from kindergarten to universities.

National Labor Relations Board (“NLRB”) Facebook Firing Cases Hispanic United of Buffalo, Inc. v. Ortiz (NLRB 2011) ISSUE: Non-Disparagement Policies HUB is non-profit that provides social services to poor HUB fired 5 employees who posted comments on Facebook Employees complained on Facebook that other staff members were accusing them of not doing their job. And, this is what they said . . . .

National Labor Relations Board (“NLRB”) Facebook Firing Cases Hispanic United of Buffalo, Inc. v. Ortiz (NLRB 2011) Lydia Cruz, a co-worker feels that we don’t help our clients enough at HUB. I about had it! My fellow co-workers how do u feel? What the f . . . Try doing my job. I have 5 programs. What the Hell, we don’t have a life as is, What else can we do? Tell her to come to my fucking job n c if I don’t do enough, this is just dum. I think we should give our paychecks to our clients so they can “pay” the rent, also we can take them to their Dr’s appt, and served as translators (oh! We do that). Also we can clean their houses, we can go to DSS for them and we can run all their errands and they can spend their day in their house watching tv, and also we can go to do their grocery shop and organized the food in their house pantries . . . (insert sarcasm here now).

National Labor Relations Board (“NLRB”) Facebook Firing Cases Hispanic United of Buffalo, Inc. v. Ortiz (NLRB 2011) After Facebook comments, employee complained to supervisor, who fired all 5 employees. The supervisor stated that the Facebook posts constituted bullying and harassment and violated HUB policies on non-disparagement. Employees alleged that they were fired for engaging in a “protected concerted activity” under NLRA Who do you think won?

National Labor Relations Board (“NLRB”) Facebook Firing Cases Hispanic United of Buffalo, Inc. v. Ortiz (NLRB 2011) Employees won! WHY?? Section 8(a)(1) of NLRA provides that it is an unfair labor practice to interfere with, restrain or coerce employees in the exercise of the rights guaranteed under Section 7. Section 7 provides that “employees shall have the right to self-organization, to form, or assist labor organizations . . . , and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” What does this mean??

National Labor Relations Board (“NLRB”) Facebook Firing Cases Hispanic United of Buffalo, Inc. v. Ortiz (NLRB 2011) HOW WILL THIS AFFECT YOU?? NLRA will apply to your employees – even if they are not formally unionized! The activities of a single employee in enlisting the support of fellow employees in mutual aid and protection is “concerted activity” under the NLRA It is not necessary that employees try to change working conditions. IMPORTANT: Employers need to review and revise their non-disparagement policies to ensure that they do not chill “protected concerted activities.”

National Labor Relations Board (“NLRB”) Facebook Firing Cases Social Media and Non-Solicitation Policies WHAT HAPPENED? Employer operates chain of home improvement stores Supervisor reprimanded employee in front of the Regional Manager for failing to perform a task she was never instructed to perform During lunch break, employee used her cell phone to update her Facebook status. She wrote a comment that consisted of an expletive and the name of the employer’s store. One co-worker “liked” the comment. The employee was later fired for violating social media and no-solicitation policies. WHO WON??

National Labor Relations Board (“NLRB”) Facebook Firing Cases Employee Won! WHY? Employer’s social media policy was overly broad because employees could not identify themselves as the employer’s employees Employees could only discuss terms and conditions of employment in an “appropriate manner.” This term was not defined by employer. The NLRB concluded that this policy would prohibit protected activity, including criticism of the employer’s labor policies, treatment of employees, and terms and conditions of employees IMPORTANT: Employers need to review and revise their social media policies to ensure that they provide proper limitations.

National Labor Relations Board (“NLRB”) Facebook Firing Cases Pop Quiz: All true cases! A bartender was fired after posting comments in a Facebook conversation with his sister, expressing his hope that his employer’s “redneck” customers would “choke on glass as they drove home drunk.” None of his co-workers participated in the Facebook conversation. NLRA Violation? Concerted Activity?

National Labor Relations Board (“NLRB”) Facebook Firing Cases Pop Quiz: All true cases! An employee was terminated after he expressed his anger and frustration over his supervisor. He proclaimed – “Wuck Falmart” He called his supervisor a “super mega puta,” complained that it was “retarded” that way he was chewed out for things that weren’t his fault, and said he’s talking to the Store Manager “cuz” if this “shit . . . don’t change Wal-Mart can kiss my royal white ass.” Some co-workers chimed in with “bahahaha”, “like,” and asked him what got him so upset. NLRA Violation? Concerted Activity?

National Labor Relations Board (“NLRB”) Facebook Firing Cases Pop Quiz: All true cases! Employee was a greeter at Wal-Mart. Employee had a public Facebook page and identified himself as a Wal-Mart employee. And this is what he posted on Facebook . . . The government needs to step in and set a limit on how many kids people are allowed to have based on their income. If you can’t afford to feed them you shouldn’t be allowed to have them. . . . Our population needs to be controlled! In my neck of the woods when the whitetail deer gets to be too numerous we thin them out! . . . . Just go to your nearest big box store and start picking them off . . . . We cater too much to the handicapped nowadays! Hell, if you can’t walk, why don’t you stay the f@*k home!!!! NLRA Violation? Concerted Activity?

National Labor Relations Board (“NLRB”) Facebook Firing Cases Pop Quiz: All true cases! Employee worked in a hospital. She was terminated for criticizing her supervisor on Facebook. Employee called his supervisor a “dick” and “scumbag.” Employee also posted “Love how the company allows a 17 to be a supervisor.” – [Code 17 is for a psychiatric patient] Co-worker responded by saying “chin up.” NLRA Violation? Concerted Activity?

National Labor Relations Board (“NLRB”) Facebook Firing Cases Pop Quiz: An employee sends an e-mail to a co-worker about the employer’s new vacation policy. Is this activity protected? Was this concerted activity?

National Labor Relations Board (“NLRB”) NRLB/Facebook vs. Employers How can you prevent this? Employees have the right to discuss matters using social media, BUT the employer may do the following: Establish a social media policy that: Prohibits or limits social media during work hours Prohibits disclosure of confidential information Prohibits harassment through the use of social media Requires employees to state on their social media page that the views expressed are those of the employees – and not of the employer Must be specific!!!

National Labor Relations Board (“NLRB”) NRLB/Facebook vs. Employers Is there a sample social media policy? NLRB Acting General Counsel released a report indicating that Wal-Mart’s social media policy was 100% lawful HOWEVER, the NLRB Inspector General later issued a report, finding that the NRLB General Counsel violated ethical rules by participating in Wal-Mart’s case since he owned stock in Wal-Mart. The NLRB General Counsel allowed Wal-Mart to amend its social media policy to avoid having the NLRB file a complaint.

Thank you! Questions?