Social Media: What Employers Need to Know Presented by: Sarah Platt von Briesen & Roper, s.c

Who Has Social Network Accounts According to Pew Research Foundation:  65% of adults use social networking sites  72% of online adults use Facebook  31% use Pinterest  28% use Instagram  25% use LinkedIn  23% use Twitter MRA Employment Law Update

Millennials  90% use social media  “Digital Natives”  Enthusiastically have embraced social media.  Personal sharing overrides their concerns for privacy.  Experts predict that this will continue to be the case as millennials get more responsibility at work.  15% of internet-using teens stream video live to the internet for other people to watch  Source: Pew Research Foundation MRA Employment Law Update

But it is not just the young people…  Usage by adults over age 65 has more than tripled since 2010  35% use social media  Women used to significantly outnumber men, but now nearly as many men use social media as women  Social media used to be used significantly more by those with higher education and income levels, but that gap is shrinking MRA Employment Law Update

Legal Issues  PRIVACY!  Employment Laws  Proper Use of Social Media  False Advertising/Federal Trade Commission  Intellectual Property  Wisconsin’s Social Medial Protection Act MRA Employment Law Update

Policies For Social Media  Stress confidentiality  Use proper privacy and security settings  Policy applies to employees using social media while at work. It also applies to the use of social media when away from work if it is work or impacts the work environment  Do not have a policy saying “no negative statements” on social media MRA Employment Law Update

Impermissible Policies  Blanket prohibitions not allowed.  “No disparaging comments about the company through social media”  “Do not release confidential information about the company, its employees, or its clients”  “Only discuss on a need-to-know basis”  Guidance from employer  “When in doubt, do not post on social media. Checking with the company is a good idea.” MRA Employment Law Update

Legal Risks of Accessing Social Media Accounts  May violate term of use  May violate privacy statutes  Violates Federal Computer Fraud statutes which include criminal sanctions MRA Employment Law Update

Stored Communications Act  Electronic Communications Privacy Act (“ECPA”) – 18 U.S.C. §2701  Passed in 1986 to afford privacy protection to electronic communications  Stored Communications Act (“SCA”) – Title 2 of the ECPA which is designed to address unauthorized access to stored wire and electronic communications and transmittal records MRA Employment Law Update

Wisconsin Social Media Protection Act  Prohibits employers from:  Requesting or requiring an employee or applicant to disclose passwords, user names, other access information to a personal social media account.  Terminating or discriminating against an employee because the employee refused.  Refusing to hire an applicant because the applicant refused to provide access to a social media account.  Employers may require access information to devices provided by the employer.  Employers can discipline or discharge an employee for transferring the employer’s confidential information to the employee’s personal social media account. MRA Employment Law Update

False Advertising  Information on the social media sites must be accurate  FTC regulations regarding endorsements of products and identification of relationship to the Company  Employees commenting on company products and services must disclose affiliations to the Company. Failure to do so can lead to liability to the Company MRA Employment Law Update

Intellectual Property Issues  Copyright infringement  You can’t copy off another company’s website!  Trademark infringement  Who owns your social media presence?  Who has registered the domain? Who holds the passwords? MRA Employment Law Update

Blurred Lines: How Do Employees Access Social Media?  Variety of physical locations. (Physical location of workplace is blurring)  Variety of times. (Lines between work day and personal life is blurring)  Variety of devices. (Work-provided devices and personal devices)  Social media blurs personal and professional. MRA Employment Law Update

 Social media sites lead to knowledge of employee’s personal activities.  Sick leave abuse.  Worker’s compensation abuse.  Allows employers to have more information to discriminate (legally or illegally). Blurred Lines (continued) MRA Employment Law Update

It is the New Water Cooler  Social media is the new water cooler.  To that end, there have been an explosion of charges and complaints against employers regarding negative job actions that have occurred as the result of speech on social media. MRA Employment Law Update

National Labor Relations Act  Section 7: “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 concerted activities for the purpose of collective bargaining or other mutual aid or protection.” MRA Employment Law Update

American Medical Response Case  First well-publicized NLRB case on social media issues.  AMR fired an employee who posted negative remarks about her supervisor on her Facebook page.  MRA Employment Law Update

AMR (continued)  AMR had a policy against “Rude or discourteous behavior to a client or coworker.”  AMR had a policy against inappropriate language.  AMR had a policy which prohibited employees “from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, coworkers or competitors.”  Terminated employee, who was represented by a union, filed an unfair labor practice charge with the NLRB stating that interfered with her Section 7 rights. MRA Employment Law Update

AMR (continued)  The case settled.  According to the NLRB’s press release, the terms of the settlement called for the company to “revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing wages, hours and working conditions with coworkers.” MRA Employment Law Update

NLRA and Facebook  Board’s test for concerned activity is whether the activity “is engaged in with or on the authority of other employees, and not solely by and on behalf of the employee himself.”  Concerted activity = collective or group activity. MRA Employment Law Update

Other Areas  Employee posting on Facebook or Twitter or Instagram about being on vacation, playing in a band, etc., while on sick leave.  Be careful of being overzealous: do not ask employees to show you the Facebook page – let them come to you voluntarily.  Be careful about FMLA. MRA Employment Law Update

Tips From the Trenches!  Ask: How did I learn about this Facebook post?  Conduct your own investigation, including talking to the employee.  Consider the National Labor Relations Act: Is this concerted speech about wages, hours, working conditions?  Consider any employment agreement. MRA Employment Law Update

Using Social Media for Hiring  2012 Study by Careerbuilder  37% of employers surveyed screen potential hires by using social media.  34% found information that caused them not to hire a particular candidate:  Provocative pictures.  Information about the candidate drinking or drugging.  Poor communication skills.  Bad mouthing previous employer.  Lying about qualifications. MRA Employment Law Update

Pitfalls of Social Media Sites in Screening  They provide information not provided during a “normal” application process:  Race, national origin, immigration status age, familial status, disability status, pregnancy, religion, sexual orientation, etc.  Be careful not to violate discrimination laws.  Consider having a different employee review social media and pass on to decision maker only relevant information that does not implicate protected class MRA Employment Law Update

Best Practices MRA Employment Law Update

Have a Social Media Policy  Have a policy for your public relations department and one for employees.  Electronic communications policy and social media policy (governs behavior on legitimate work-related communications) should be intertwined.  Train people on the policy.  Clearly communicate that all systems are owned by the company.  Clearly communicate that all systems provided are for business use and not personal use.  Employees should be warned that employer owns their device and all communications and that they have no expectation of privacy on those employer provided devices. MRA Employment Law Update

 Warn employees of consequences of violating policy (discipline and discharge).  Connect social media policy to work rules.  Clearly describe prohibited activities without being overbroad to chill employee speech:  Disseminating Confidential Information  Engaging in actions or downloading materials that are vulgar, harassing, threatening, intimidating.  Include a disclaimer to explain that the policy does not prohibit, and is not intended to prohibit, employees from engaging in protected concerted activity or discussing wages, hours and working conditions. Social Media Policy (continued) MRA Employment Law Update

Best Practices (cont.)  Mine your entity’s social media presence regularly.  Use internet and social media to enhance recruitment and searches, but not exclusively.  Consider value and risks associated with utilizing social media networks geared toward certain demographic traits.  Consider separating the tasks of reviewing social media and making hiring decisions between different people MRA Employment Law Update

Best Practices (cont.) Checklist of Questions for Discipline  How did I learn of the social media post in question?  Public site.  Other employees who bring it to you.  Never require an employee to show you their social media.  Who is the audience for the speech?  Public?  Semi-private (Facebook friends)?  Co-workers included? MRA Employment Law Update

Checklist of Questions for Discipline  What is the content of the speech?  Does it contain confidential company information?  Does it violate another company policy? (harassment?)  Is it individual griping about work, or is the employee griping on behalf of others?  Does the griping concern wages, hours and working conditions? MRA Employment Law Update

Any questions? MRA Employment Law Update

Thank You! Presented By Sarah Platt von Briesen & Roper, s.c. 411 East Wisconsin Avenue, Suite 1000 ∙ Milwaukee, WI Direct This presentation is prepared to provide information for the subject matter covered. It is presented in conjunction with an oral presentation. This outline should not be utilized as a subject or in lieu of legal services in specific situations. If legal advice or other expert assistance is required, the services of an attorney should be sought. This presentation is owned and copyrighted by the program presenter and may not be reproduced without the express written permission of the presenter. MRA Employment Law Update