1. 1 ENFORCING SOCIAL MEDIA AND COMPUTER USAGE POLICIES Haley R. Van Loon BrownWinick 666 Grand Avenue, Suite 2000 Des Moines, IA 50309-2510 Telephone: 515-248-6625 Facsimile: 515-248-6626 E-mail: vanloon@brownwinick.com

2. 2 With advent of social media many employers looking for ways to capitalize on advantages inherent in these new ways of communicating with customers, vendors and employees

3. 3 Social Media Pitfalls Proprietary/confidential information Identity protection Cyber-bullying/harassment Deceptive trade practices

4. 4 “Best Practice Policies” v. National Labor Relations Board (NLRB)

5. 5 NLRB Federal agency responsible for safeguarding rights of employees to organize and to prevent and remedy unfair labor practices. The NLRB’s keen interest in how employers attempt to regulate employee’s use of “social media,” such as Facebook, Twitter and related sites creates new challenges for management unfamiliar with the National Labor Relations Act (NLRA) and its requirements.

6. 6 Protected Concerted Activity Under the NLRA, all employees, whether union members or not, have the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. These activities include discussing wages, hours and other terms and conditions of their employment with their coworkers. Employer actions against employees who engage in activity the NLRA protects may constitute an “unfair labor practice.” The NLRB adjudicates unfair labor practice complaints against non-union and unionized employers.

7. 7 Result of 14 unfair labor practice cases involving discipline for employee statements in social media 5/28/2011 NLRB General Counsel Report

8. 8 Overbroad employer policies Unlawful discharge or discipline Two Contexts of NLRB Review

9. 9 NLRB Analysis of Employer Policies 1.Explicitly restrict protected activities; or

10. 10 NLRB Analysis of Employer Policies 2.a. Would employee reasonably construe policy to prohibit protected activity, or

11. 11 NLRB Analysis of Employer Policies 2.b. Was rule enacted in response to union activity, or

12. 12 NLRB Analysis of Employer Policies 2.c. Has rule been applied to restrict protected activity

13. 13 NLRB Analysis of Discipline  Was employee acting with or on the authority of other employees?

14. 14 NLRB Analysis of Discipline  Was employee making statements that clearly implicated working conditions?

15. 15 NLRB Analysis of Discipline  Was employee protesting supervisory action?

16. 16 Employer Defenses  Employee would have been discharged even if not engaged in protected activity

17. 17 Employer Defenses  Employee activity so “opprobrious” as to render employee “unfit for further service”

18. 18 Employer Defenses  Employee was so disloyal as to lose protections under law

19. 19 Recommendations...  Employers should and may still issue policies governing social media use  Avoid overbroad prohibitions  Logos/uniforms  “Disparaging-disrespectful-offensive”  Use of company name in profile

20. 20 Recommendations... Use Examples of Prohibited Activity. Extend Company’s Anti-harassment and Anti-discrimination policy to include posts on social media sites. Prohibit disclosure of confidential/ proprietary or trade secret information.

21. 21 Disclaimer: Nothing in this Policy shall be construed to limit in any way your rights under any applicable federal, state or local law, including but not limited to the National Labor Relations Act. Recommendations...

22. 22 Before you discipline, consider:  Is employee activity related to terms and conditions of employment?

23. 23 Before you discipline, consider:  Were co-workers involved or did they comment on the post?

24. 24 Before you discipline, consider:  Was the activity related to prior discussions with co-workers?

25. 25 Before you discipline, consider:  Has the issue (or will it) been discussed with management?

26. 26 Scenario: You discover a former employee accessed and downloaded confidential or proprietary files and is now working in competition

27. 27 Computer Fraud & Abuse Act (CFAA) 18 USC § 1030

28. 28 Prohibits accessing a “protected computer” in interstate or foreign commerce “without authorization” and obtaining information, or damaging data/equipment

29. 29 Violation is a criminal act, punishable by fines / imprisonment

30. 30 Courts have reluctantly enforced, focusing on “without authorization” requirement in CFAA

31. 31 Recommendations...  Clearly delineate restriction: Avoid broad bans on “unauthorized use” or “competitive purposes”

32. 32 Recommendations...  Report and reinforce prohibition –Training –Security reminders –Logon prompts

33. 33 Recommendations...  Caution against undercutting policy through statements or condoning violations

34. 34 Recommendations...  Include personal devices used/ approved for business use

35. 35 Recommendations...  Articulate that authorization ends upon termination or accepting competitive employment

36. 36 Restrictive Covenants and LinkedIn

37. 37 Restrictive Covenants  Non-competition  Non-solicitation

38. 38 “Direct or indirect”

39. 39 Public nature of LinkedIn-type social media may undercut argument that employee’s business contacts are a proprietary resource

40. 40 Consider...  Limiting use of LinkedIn with clients / vendors  Requiring employees to “disconnect” upon termination

41. 41 Website: www.brownwinick.com Toll Free Phone Number: 1-888-282-3515 OFFICE LOCATIONS: 666 Grand Avenue, Suite 2000 Des Moines, Iowa 50309-2510 Telephone: (515) 242-2400 Facsimile: (515) 283-0231 616 Franklin Place Pella, Iowa 50219 Telephone: (641) 628-4513 Facsimile: (641) 628-8494 DISCLAIMER: No oral or written statement made by BrownWinick attorneys should be interpreted by the recipient as suggesting a need to obtain legal counsel from BrownWinick or any other firm, nor as suggesting a need to take legal action. Do not attempt to solve individual problems upon the basis of general information provided by any BrownWinick attorney, as slight changes in fact situations may cause a material change in legal result.