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

2. Social Media

3. 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

4. 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

5. 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

6. 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

7. Discipline and Discharge Decisions Using Social Media

8. 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

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

10. 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

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

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

13. 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

14. 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.”

15. 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”

16. THE MISUSE OF THE EMPLOYER’S COMPUTER

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

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

19. 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! account and send messages to personal lawyer

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

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

22. A Reasonable Expectation
The court reasoned that the Policy was ambiguous as to treatment of personal, web-based 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.

23. EIGHT WAGE AND HOUR TRAPS

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

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