1. European Employment Lawyers Association Conference Social Media in the Workplace – the challenges and opportunities 4-6 June 2015 Limassol, Cyprus

2. Introduction - Panellists Mary Brassil McCann FitzGerald mary.brassil@mccannfitzgerald.ie James Froud Bird & Bird james.froud@twobirds.com Ariane Claverie Castegnaro ariane.claverie@castegnaro.lu Philip Nabben Bronsgeest Deur Advocaten p.nabben@bd-advocaten.nl

3. The Rise of Social Media 1.44 billion MAUs* 300 million MAUs 500 million tweets/day 350 million MAUs 200 countries Qzone - 639 million MAUs in China *MAU = Monthly Active Users 2.2 billion profiles 300 million MAUs 800 million MAUs

4. Overview Social media is different from traditional forms of media – Instantaneous – Global audience Organisations wish to maximise the opportunities social networks provide Need to address the risks – Cyberslacking - productivity – Misuse of social media

5. Scenario Advising XYZ plc, a large multinational company, who want to understand the risks posed by the use of social media in the workplace in the context of developing a Social Media Policy for its global business

6. Questions Can an employer use social media to screen candidates as part of the recruitment process? Can an employer monitor employees’ social media activity? When does an employee’s use of social media become an abuse of the working relationship? Is an employee’s private on-line conduct actionable? How does an employer protect its business and its reputation? Who owns LinkedIn contacts?

7. Examples of Social Media Vetting by Employers

8. Social Media Vetting as part of Recruitment Process Roughly 50% of employers review a candidate’s social media presence, slowly becoming a standard operating procedure (most reviewed sources: LinkedIn, Facebook, Twitter, Instagram, Google+) Employers are mostly: – Looking for information supporting their choice for the candidate – Checking if the candidate has a professional image/reputation – Checking what other people say about the candidate – Looking for reasons for not hiring the candidate

9. Is it Allowed to Vet Social Media (as part of the recruitment process or otherwise)? Given the newness of social media, the legal landscape in most European countries is still almost bare of any guidance specific to social media However, existing laws concerning privacy and data protection give meaningful guidance on how to lawfully collect, monitor and use job applicants’ and employees’ social media content Sometimes big differences between countries (US versus EU countries), sometimes only small nuances

10. Best Practice (1) Provide notice and/or obtain consent before collecting and using social media information in the background checking process Beware that the restrictions to the use of certain categories of information for employment purposes (e.g. race or ethnic origin, disability etc.) also apply to information collected through social media Potential liability for bypassing user-created restrictions on access to social media content, especially in case of false pretences or coercion to gain such access

11. Best Practice (2) Information posted on publicly available social media sites: (almost) no protection under privacy laws Employers generally have significant latitude to take disciplinary action based on an employee’s social media activity using the employer’s electronic resources during work hours, provided that the employer has implemented a legally compliant electronic monitoring policy Be careful about taking adverse employment action based on an employee’s off-duty social media activity using personal electronic resources

12. US Practice vs. European Practice US: no expectation of privacy in the workplace vs. Article 8 ECHR: an individual’s general right of privacy extends to the workplace How about: – Asking/demanding social media passwords from job applicants and employees? – HR department representatives trying to become a ‘friend’ of the candidate/employee on Facebook?

13. Other Considerations/Observations Works Council rights? Tendency not to overestimate information obtained through social media (screening focusing mainly on professional qualities) Legislation regarding social media vetting? Codes of conduct, e.g.: – Netherlands: ‘NVP Sollicitatiecode’; – UK: ‘UK Employment Practices Data Protection Code’

14. Finally “Twittering at work is not that bad”

15. Monitoring of Employee’s Use of Social Media Why monitoring? How to monitor? – Do – Don’t Steps with: – DP Authorities, – Employee’s representatives, – Employees

16. Inappropriate Use of Social Media by Employees Legislative background – Right to privacy (Art. 8) – Freedom of expression (Art. 10) – Local statutory employment protection Case law – Reputational damage – Conduct and policy breach – Vicarious liability

17. Is there Privacy on Social Networks? (In)Compatibility? – Privacy = Intimate, Private Info/Behavior – Social Network = Open system of Creation and Content Sharing Privacy v Lawful Evidence

18. Freedom of Expression European Convention on Human Rights (Article 10): but big exception Smith –v- Trafford Housing Trust (UK case) – Religious views about gay marriage ("an equality too far") posted on Facebook – Disciplinary proceedings resulted in demotion and pay reduction – Smith won breach of contract claim, but Pyrrhic victory

19. Reputation Concerns and Client Relationships…

20. Preece –v- JD Wetherspoon - -Preece dismissed for lowering reputation; -Unfair dismissal claim rejected; -Employer had policy & 24/7 employee "hotline"; -Article 10 exemption applied

21. Facebook dismissals - unfair – Whitham –v- Club 24 Ltd t/a Ventura "I think I work in a nursery" – Young –v- Argos "Chocolate teapot" comment 'liked' YouTube dismissal - unfair – Taylor –v- Somerfield Stores (Scotland case) Video clip of plastic bag 'assault' Twitter dismissals – Game Retail –v- Laws – Keith Mason –v Huddersfield Giants

22. Conduct and Policies

23. The Policy Imperative Crisp –v- Apple Retail (UK) Ltd – Unhappy employee dismissed for FB posts: "Once again fuck you very much work" "MobileMe fucked up my timezone…" – Tribunal concluded fair dismissal: No reasonable expectation of privacy Limitation on freedom of expression justified Importance attached to corporate image Extensive induction & training were critical factors Access to policies and the Apple "Credo" highly relevant

24. Employer’s Liability Vicarious liability of employer – Bullying / Harassment between colleagues – Intellectual property, copyrights Do Social Networks change something? – Evidence? – Rules of responsibility? –...

25. Social Media – who owns it? Contacts and connections are a key asset for many businesses Who owns the social media account? – Corporate /personal accounts LinkedIn – Largest professional network – Invite connections – LinkedIn User Agreement

26. LinkedIn What proprietary rights exist in a user’s connections? – Database rights – Confidentiality Case law Hays Specialist Recruitment v Ions (2008, UK case) – Ex-employee alleged to have uploaded client details from employer’s database to his LinkedIn account before leaving to set up competing business

27. Case Law Whitmar Publications v Gamage & Ors. (2013, UK case) – Unlawful use of employer’s LinkedIn groups – Accounts maintained as part of employment duties Eagle v Edcomm (2013, US case) – Departing executive locked out of her LinkedIn account – No clear ownership policies

28. Case Law Nautech Services v CSS (2014, Royal Court of Jersey) – Ex-employee transferred confidential information from employer’s database to personal email address – Copyright and confidentiality protection did not extend to the ex-employee’s LinkedIn account – Court cited LinkedIn User Agreement

29. Practical Steps for Employers Implement Social Media Policy and LinkedIn Policy Statement of ownership Retain login and passwords Replicate contacts on employer’s database Contract provision assigning to employer any proprietary interest in contacts

30. Social Media Policies

31. Social Media Policies Purposes Is it necessary? – Social Media and Working Time – Freedom of Expression v. Reputational Damage – BYOD, – Remote Working, – Disciplinary Procedures, –... Cultural & Legal Challenges

32. SOCIAL MEDIA POLICIES Key Features Right to be informed Terms of use (professional vs. private) Authorized / forbidden use Controls Disciplinary actions

33. X SOCIAL MEDIA POLICIES Best Practice Guidance Transparency, loyalty, proportionality Training Integration of references to social media use in other policies (IT, BYOD, remote working, bullying & harassment, discrimination)