MANAGING EMPLOYEE BLOGS, FACEBOOK PAGES AND WEBSITES Jonathan M. Crotty September 24, 2009

INTRODUCTION  “The Spec-Tator”  Whole Foods Mystery Blogger  Domino’s Pizza Hickory “Pranksters” 2

WHAT SITES ARE WE TALKING ABOUT?  Social networking sites – Facebook, MySpace, LinkedIn  Twitter  Wikipedia  Blogs and personal websites  YouTube 3

WHY ARE COMPANIES CONCERNED?  Use at work – time wasting, harassment  Effects of postings on company  Customer relationships  Confidential information disclosure  Public image  SEC compliance 4

BLOGS AND THE WORKPLACE “The average IQ in America would increase if a bomb were dropped on Wal-mart Stores.” --David Noordewier

ON THE OTHER HAND…  Businesses want to encourage legitimate and productive use of social networking sites  Company sponsored or encouraged blogs  “Tweets” to customers regarding new developments  LinkedIn and business networking 6

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INTERNET SCREENING OF EMPLOYEES AND APPLICANTS  Bozeman, MT password disclosure for applicants and subsequent public outcry 19

PUBLIC SCHOOL TEACHERS GONE WILD  Charlotte Observer:  According to the report, four other instructors have been disciplined for using the social network for posts showing "poor judgment and bad taste." One teacher listed drinking as a favorite hobby and described her job as "teaching chitlins in the ghetto of Charlotte."

TWITTER TWIT  Job seeker offered a job Tweeted this:  “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work.”  To which, someone at Cisco responded:  “Who is the hiring manager. I’m sure they would love to know that you will hate the work. We here at Cisco are versed in the web.”

FACEBOOK FAIL  Former employee of Philadelphia Eagles, posted this status update:  “Dan is ******* devastated about Dawkins signing with Denver…Dam Eagles r Retarded.”

WHAT EMPLOYER WOULD NOT WANT TO KNOW THIS?  Employment at-will provides some protections  Internet as “public sidewalk”  Protect against co-worker harassment  Confidential information/SEC compliance 23

LEGAL ISSUES INVOLVED WITH INTERNET SEARCHES “The reason I started my blog in the first place was as a form of therapy.” “I have decided to continue to blog and spread my story about employer backlash.”

EEO/LABOR ISSUES  ADA and confidential medical information  GINA  NLRA  SOX 25

OTHER EMPLOYEE CLAIMS  Invasion of privacy  FCRA – unauthorized consumer reports  Lawful products statutes  Political beliefs – public employers 26

FEDERAL ANTI-HACKING LAWS  Stored Communications Act  Computer Fraud and Abuse Act  Electronic Communications Privacy Act 27

BALANCING THE NEED TO KNOW WITH SEARCH RISKS  Think through in advance  One solution not right for all companies  Consult with HR, marketing, etc. 28

BLOGGING POLICY  Set expectations and boundaries  Elements:  Use of disclaimers  Use at work  Prohibited conduct  Disciplinary consequences 29

SCREENING GUIDELINES  When will Internet searches be conducted?  Who will conduct the searches?  Screening irrelevant information from decision makers  Disclosures to applicants/employees about searches 30

DON’T IGNORE CONSTRUCTIVE USES OF TECHNOLOGY  Encourage use where appropriate  Set guidelines for company- sponsored social networking  Top management should lead by example 31

Jonathan M. Crotty Attorney at Law Three Wachovia Center 401 South Tryon Street Suite 3000 Charlotte, NC Direct Dial Facsimile Main