What Employers Can and Cannot Do Thomas D Rees Esq High Swartz LLP February 23 2016 1 The Old School Never write what you can say never say what you can nod never nod what you can wink ID: 599679
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Social Media Policies:What Employers Can and Cannot Do
Thomas D. Rees, Esq.High Swartz LLPFebruary 23, 2016
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The Old School “Never write what you can say; never say what you can nod; never nod what you can wink.”
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Who Said This? Martin
Lomasney, Boston Political Boss (pictured at left on preceding page), 1859-1933David Lawrence, Pennsylvania Governor (1959-63) and Pittsburgh Mayor (1946-59) (pictured at right on preceding page), 1889-1966Good words to remember before posting on social media
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Who Are These People?Victims of Their Own Postings
-Justine Sacco -Natalie Munroe-Gerod RothVictims of Others’ Postings
-Patrick Snay -Anjali Ramkissoon -Anna Land
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Common Social Networking Sites
FacebookTwitterLinkedInBlogsSnapchatInstagramYouTubePinterest
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Who Can Monitor Social Networking Sites?
Anyone!Prospective EmployersEmployersEmployeesLaw EnforcementJudicial System (e.g., divorce, custody, support, parental
rights cases)Parties to LitigationEducational Institutions6Slide7
Key Legal Limitations on Monitoring/Use of Postings
Statutes preventing employers from demanding access (NJ, Delaware, Maryland)Labor relations lawsDiscrimination lawsConstitutional issues (public employees only)Statutes limiting employer regulation of off-duty activityPrivacy lawsProfessional ethics
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Using Social Media to ScreenApplicants
Risks: Discrimination Benefits: Verification of work history, suitability for jobBozeman exampleDifference between public and private content
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Purposes of Monitoring Current Employees Honesty (overtime, sick leave, worker’s compensation)
Loyalty (competition, comments)Compliance with laws (substance use, harassment, privacy regulations)Inappropriate conductThreatening conduct
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But Don’t Even Think ofDisciplining employees for engaging in concerted activities for mutual aid and protection
Adopting policies that prohibit communications that could be concerted activitiesAND REMEMBER:Federal labor law does apply to nonunionized employees!
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What Employers May DisciplineRude comments about customers or members of the public
Disclosure of trade secrets or confidential or private informationUse of social media to harass or threaten others 11Slide12
What Employers May NOT DisciplineDiscussions of wages, hours, benefits
Criticism of supervisor conduct at the workplaceProfane or harsh comments related to working conditions 12Slide13
Permitted Social Media Policies Requiring courtesy
to publicRequiring cooperation at workProhibiting threatening conductProhibiting insubordinationProhibiting harassmentProhibiting racial/ethnic slurs
Prohibiting specific activities that are conflicts of interest13Slide14
What Policies Employers May Not Adopt
Overly broad confidentiality rulesBroad prohibitions on disrespectful, defamatory, profane, or damaging commentsBroad prohibitions on posting photos or use of logosProhibitions on commenting on employer and its performance
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Sample Policy: Wendy’s Be thoughtful in all communications in email and social media.
Do not comment on trade secrets and proprietary information without advance approval.Do not make negative comments about customers.Use of social media on company equipment during working time is permitted if for legitimate preapproved company business.
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What Wendy’s Employees Can’t Do on Social MediaTake, distribute, or post photos or videos/audios while on work time (to protect vs. harassment or invasion of privacy or disclosure of proprietary information)
Create blog related to company without advance approval BUT concerted activities related to working conditions or strike/protest issues not barred
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What Wendy’s Employees Can’t Do on Social MediaHarass, threaten, libel, or defame fellow employees, customers, competitors
Make knowingly false representationsUse logos or trademarks for commercial purposes without approval 17Slide18
Your Employee has Left- What Next?Who owns the employee’s social media pages/accounts?
Importance of keeping ex-employee from taking trade secrets, confidential contactsBut don’t misappropriate employee’s social media accounts
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Monitoring Ex-employeesChecking for violation of restrictive covenants
Checking for improper disclosure of trade secrets or confidential informationEnsuring compliance with non-disparagement agreementsChecking for statements that are inconsistent with ex-employee claimsChecking for violations of computer fraud laws
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Three More Quotes to Remember
“You have the right to remain silent. Anything you say (or do) may be used against you.”BUT: “Employees shall have the right to
engage in concerted activities for the purpose of mutual aid or protection.”“You find something,” the Boss said. “But what if there isn’t anything to find?” I asked. And the Boss said, “
There is always something.” – All the King’s Men, Robert Penn Warren
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Questions?
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