1. WHY CAN’T WE BE FRIENDS? Dealing With Social Media in the Workplace
Association of Corporate Counsel
Iowa Chapter
2nd Annual Corporate Counsel Forum
Patrick D. Smith
Bradshaw, Fowler, Proctor & Fairgrave, P.C.
May 30, 2014

2. Topics To Be Covered Employee Privacy Ownership Issues
Recruiting and Hiring
NLRB and Social Media
Discrimination and Harassment
Social Media Policies
Discovery of Social Media in Employment Litigation

3. Examples of Social Media
Social Networking Sites (Facebook, MySpace, LinkedIn, Twitter; Instagram; Pinterest)
Web Logs or Blogs
Wikis (e.g., Wikipedia)
Video-Sharing Sites (e.g., YouTube)
Messaging Sites (Snapchat; WhatsApp

4. Facebook

5. Facebook

6. Facebook
Launched in 2004
Currently the most popular social networking site
Targets students and adults
More than 500 million active users
50% of active users logged on in any given day
Users spend over 700 billion minutes per month on Facebook

7. MySpace

8. MySpace

9. MySpace
Launched in 2004
Leading social networking site in 2007 and 2008
More than 100 million users around the globe

10. LinkedIn

11. LinkedIn

12. LinkedIn Targets professionals
Facilitates connections and communications with other professionals
Used to post business-related information, business networking, and job searches
Over 90 million members in over 200 countries and territories

13. Twitter

14. Twitter

15. Twitter Described as microblogging
Users post "tweets" of up to 140 characters
Members can post links to articles, pictures, videos and other information about themselves or topics of interest
Other people can become "followers" of users to receive tweets
Twitter has 175 million registered users and 95 million tweets are written per day

16. Web Logs or Blogs

17. Web Logs or Blogs

18. Web Logs or Blogs
Usually maintained by an individual or a group of individuals with regular entries consisting of commentary on current events, or more personal online diaries
Blogs generally allow readers to post comments
Most blogs post hyperlinks to other blogs

19. Wikis

20. Wikis

21. Wikis
Websites on any given topic that are easy to create and allow for the editing of any number of interlinked web pages
Described as "content management systems"
One of the most popular wikis is Wikipedia

22. Video-Sharing Sites

23. Video-Sharing Sites

24. Video-Sharing Sites
The world's most popular online video community is YouTube
More than 13 million hours of video were uploaded during 2010
Every minute, 35 hours of video are uploaded to YouTube
Over 4 million people are connected to YouTube and "auto-sharing" to at least one other social network

25. Why Do Employers Care About Social Media?
79% of Fortune 500 Companies use social media applications to communicate with customers, stakeholders, and the general online community
45% of employers regularly used questions about applicants’ use of social media activities as a screening tool (2007 study)
44% of companies track employee’s use of social media both in and out of the workplace (2011 study)

26. Employee Privacy Issues
Generally, an employer has the right to read employee messages, unless company policy assures employees that their messages will remain private
Employers may also keep track of the Internet sites visited by employees, and may block access to certain sites or limit the amount of time employees may spend on sites that are not work-related

27. Employee Privacy Issues
Public Employees: Be Aware of Constitutional Issues

28. Employee Privacy Issues
City of Ontario v. Quon, ___ U.S. ___, 130 S.Ct. 2619, 177 L.Ed.2d 216 (2010), a city police officer filed a §1983 claim against the city, alleging the police department's review of the officer's text messages violated the Fourth Amendment

29. Employee Privacy Issues
In Quon, the United States Supreme Court held that the city's review of the text messages was reasonable, and did not violate the Fourth Amendment
In Quon, the Court sidestepped the issue of the officer's reasonable expectation of privacy

30. Employee Privacy Issues
Private Employees: No Constitutional Right to Privacy, But. . .

31. Employee Privacy Issues
Tort: Intrusion Upon Seclusion
In re Marriage of Tigges, 758 N.W.2d 824 (Iowa 2008)
The right to privacy can be invaded by an unreasonable intrusion upon the seclusion of another

32. Employee Privacy Issues
Tort: Intrusion Upon Seclusion
A plaintiff alleging the tort of intrusion upon seclusion must prove:
The defendant intentionally intruded upon the seclusion that the plaintiff has thrown about his or her personal affairs
The intrusion would be highly offensive to a reasonable person

33. Employee Privacy Issues
State Laws
Iowa Code chapter 808B addresses Interception of Communications
Provides for a private cause of action for a person whose wire, oral or electronic communication is intercepted, disclosed or used in violation of chapter 808B

34. Employee Privacy Issues
Federal Laws
The Electronic Communications Privacy Act (ECPA) 18 U.S.C. §2510 et seq.
Prohibits the intentional interception of electronic communications and provides for a private cause of action, entitling the person to damages

35. Employee Privacy Issues
Federal Laws
The Stored Communications Act (part of ECPA) 18 U.S.C. §2701 et seq.
Prevents social media sites from producing information in the absence of consent from the account owner

36. Employee Privacy Issues
Does the User Have a Reasonable Expectation of Privacy?

37. Employee Privacy Issues
Courts will determine whether the person had a "subjective expectation of privacy"
To prove such an expectation, users have to first overcome the inherent assumption that they intended to publicize their information

38. Employee Privacy Issues
In the employment context, some factors to consider in determining whether an employee has a reasonable expectation of privacy include whether:
The employer owns the computer and system
The company maintains a policy banning personal or objectionable use

39. Employee Privacy Issues
The company monitors the use of the employee's computer or
Third parties have a right to access to the computer or s
The company notified the employee, or the employee was aware, of the use and monitoring policies
The employer consistently follows computer usage policies regarding privacy

40. Employee Privacy Issues
Employee Use of Personal Mobile Devices

41. Ownership Issues
Who owns Social Media Accounts Used for Business Purposes

42. Ownership Issues Phonedog v. Kravitz Eagle v. Moran
Phonedog sued former employee for Twitter account
Employer valued each contact at $2.50
Eagle v. Moran
Former employee sued employer who took control of Linked In account
Employer changed the name and picture on the account

43. Ownership Issues Takeaways: Consider Social Media Ownership Agreements
Identify Who Owns the Account
Control of Passwords
Limitations of Use
Social Media Policies Should Address Company’s Expectations and Employee’s Responsibilities

44. Recruiting and Hiring

45. Recruiting and Hiring

46. Recruiting and Hiring Risks of Using Social Media as a Screening Tool
Sample Interview Questions:
Are you married?
Are you pregnant?
Do you plan to have children? When?
What is your religion?
Who did you support in the last election?
Do you have a disability?
Have you ever been a member of a union?
What is your sexual orientation?

47. Recruiting and Hiring Social Media Background Check Problem Areas:
Problem #1: Performing Social Media Background Checks on Certain Applicants But Not Others
Problem #2: Taking Into Account Postings of Information That Reveal Protected Statuses
Problem #3: Taking Into Account Postings Considered Protected Speech Under the First Amendment (Government Employers)

48. Recruiting and Hiring Social Media Background Check Problem Areas:
Problem #4: Hiring a Third-Party to Perform Social Media Screenings but Failing to Follow the Fair Credit Reporting Act:
FCRA applies to “consumer report”, which may cover social media screenings
FCRA requires the employer to inform successful applicants that it used the social media screening, provide copies of the information relied upon, send a notice of rights, and give the applicant the opportunity to explain

49. Recruiting and Hiring Social Media Background Check Problem Areas:
Problem #5: Taking Into Account an Employee’s Protected, Converted Activities
Problem #6: Failing to Take Into Account Information That Shows an Applicant May Present a Safety Risk to Other Employees

50. Recruiting and Hiring Protecting Yourself From Social Media Risks:
Separate the reviewing and decision- making functions
Ensure decision makers are prevented from access to protected status information
Asking for social media passwords

51. Social Media and Harassment
Use of Social Media to Harass Other Employees
Does the social media activity impact a term or condition of employment?
Does Social Media Put an Employer on Notice of Harassment?
DeBord v. Mercy Health Services (10th Cir. 11/26/13)
Supervisor-Employee Friending

52. NLRB and Social Media What is the NLRA and NLRB?
Section 7: Employees have the right to engage in protected and concerted activity

53. NLRB and Social Media NLRB Involvement in Social Media
2011 and 2012: issued “reports”
Has filed complaints in all 50 states regarding social media or electronic communications policies

54. NLRB and Social Media NLRB Involvement in Social Media
Issues involving section 7 rights and social media:
Employees using social media to engage in protected activity
Employer policies that are deemed to prohibit activity that is protected by section 7

55. NLRB and Social Media Policy Issues
Policies should not prohibit protected activity, such as discussion of wages, benefits, or working conditions among co-workers

56. NLRB and Social Media Policy Issues
Use of the following language in a conduct or social media policy will be suspect because of its vagueness:
Inappropriate conversations
Disparaging comments
Disrespectful conduct
Unprofessional communications
Negative conversations

57. NLRB and Social Media Communication Issues
Disciplining employees for engaging in certain types of communication may violate section 7:
Employees talking about their pay or benefits
Employees demeaning or disparaging their supervisors
Employees “friending” one another
Employees complaining about any aspect of their employment

58. NLRB and Social Media Communication Issues Case Examples
Design Tech Group, LLC
Butler Medical Transport
Tasker Healthcare Group

59. Social Media in Employment Litigation
Discovery of Social Media
Using Social Media to Research Plaintiffs, Witnesses, and Jurors
Deceptive “Friending” of Parties or Witnesses

60. THANK YOU! Please call if you have questions!
Patrick D. Smith
Bradshaw, Fowler, Proctor & Fairgrave, P.C.
801 Grand Avenue, Suite 3700
Des Moines, IA 50309