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My. Space Is Not Your Space: What Employers Need to Know about Employee Social My. Space Is Not Your Space: What Employers Need to Know about Employee Social Networking Wednesday, May 26, 2010 Sponsored by the Employment Law Alliance © Employment Law Alliance

Introduction -2© Employment Law Alliance Introduction -2© Employment Law Alliance

Presenters Jeffrey A. Walker, Moderator, Butler, Snow, O'Mara, Stevens and Cannada, PLLC, Jackson. MS Presenters Jeffrey A. Walker, Moderator, Butler, Snow, O'Mara, Stevens and Cannada, PLLC, Jackson. MS jeff. [email protected] com Ian P. Cooper, Tueth, Keeney, Cooper, Mohan & Jackstadt, P. C. , St. Louis, MO [email protected] com -3© Employment Law Alliance

Presenters Todd Photopulos, Butler, Snow, O'Mara, Stevens and Cannada, PLLC, Memphis, TN todd. photopulos@butlersnow. Presenters Todd Photopulos, Butler, Snow, O'Mara, Stevens and Cannada, PLLC, Memphis, TN todd. [email protected] com Ginger D. Schröder, Joseph & Associates Buffalo, NY [email protected] com Susan T. Spradley, Gray. Robinson, Orlando, FL susan. [email protected] com -4© Employment Law Alliance

The New World of Social Media Blogging Pretexting Tweeting Intexticated Sexting Facebook RS VE The New World of Social Media Blogging Pretexting Tweeting Intexticated Sexting Facebook RS VE Online Forums O RE HA E-mail Trolling Unfriending Textual Harassment © Employment Law Alliance Wiki Twitter Hashtag

 • • Most Popular Social Networking Sites Facebook Twitter Linked. In My. Space • • Most Popular Social Networking Sites Facebook Twitter Linked. In My. Space • 110 Million Americans Use Social Networks; Usage Tripled In 2008 -2009 – Widespread Demographic - Not Just Millennials & Gen Y • • • 70% of Americans Under Age 35, Largest Increase Is In Age 55+ Facebook: 35 Languages & 170 Countries and Territories Facebook = 8 th Most Populated Country, Ahead Of Japan & Russia – Increasing Number of People • • Twitter Monthly Growth Rate: 1, 382 % Facebook Monthly Growth Rate: 228% -6 © Employment Law Alliance

Facebook, Twitter and Blogs • Each technology is driven by speed • Each technology Facebook, Twitter and Blogs • Each technology is driven by speed • Each technology costs very little to “spread a message” • Each technology is very casual by nature – communications are 24/7, not 9 to 5 • Information can be posted anonymously (sort of) • The fundamental mindset of the user usually is that the communication is private (other than to the particular audience) -7 © Employment Law Alliance

Facebook, Twitter and Blogs • Employers learn of an employee’s activities, relationships, lives and Facebook, Twitter and Blogs • Employers learn of an employee’s activities, relationships, lives and thoughts and may use the same in employment-related decisions. • As soon as employers start using social networks to make decisions about potential job seekers, potential hires, and their very own employees, a whole host of employment-related legal issues can arise. • To make sure everyone is on the same page, we’ll start with an overview of the most popular social networking sites. - 8© Employment Law Alliance

; • Linked. In is a business-oriented social networking site. Founded in December 2002 ; • Linked. In is a business-oriented social networking site. Founded in December 2002 and launched in May 2003, it is mainly used for professional networking. • As of April 2010, Linked. In had more than 65 million registered users, spanning more than 200 countries and territories worldwide. The site is available in English, French, German, Italian, Portuguese and Spanish. • The membership grows by a new member approximately every second. About half of the members are in the United States. -9 © Employment Law Alliance

. • The purpose of the site is to allow registered users to maintain . • The purpose of the site is to allow registered users to maintain a list of contact details of people they know and trust in business. The people in the list are called Connections. Users can invite anyone (whether a site user or not) to become a connection. • A contact network is built up consisting of users’ direct connections, the connections of each of their connections (termed second-degree connections) and also the connections of second-degree connections (termed third-degree connections). This can be used to gain an introduction to someone a person wishes to know through a mutual, trusted contact. -10 © Employment Law Alliance

. • Find jobs, people, and business opportunities, potential candidates, pre-hire introductions, post and . • Find jobs, people, and business opportunities, potential candidates, pre-hire introductions, post and view photos. • The "gated-access approach" (where contact with any professional requires either a pre-existing relationship, or the intervention of a contact of theirs) is intended to build trust among the service's users. • The feature Linked. In Answers, similar to Yahoo! Answers, allows users to ask questions for the community to answer. -11 © Employment Law Alliance

. • The searchable Linked. In Groups, feature allows users to establish new business . • The searchable Linked. In Groups, feature allows users to establish new business relationships by joining alumni, industry, or professional and other relevant groups. • A mobile version of the site was launched in February 2008 which gives access to a reduced feature set over a mobile phone. -12 © Employment Law Alliance

. • In October 2008, Linked. In enabled an . • In October 2008, Linked. In enabled an "applications platform" that allows other online services to be embedded within a member's profile page. For example, among the initial applications were an Amazon Reading List that allows Linked. In members to display books they are reading, a connection to Tripit, and a Six Apart, Word. Press and Type. Pad application that allows members to display their latest blog postings within their Linked. In profile. -13 © Employment Law Alliance

. • Members use Facebook to talk with friends and share personal information about . • Members use Facebook to talk with friends and share personal information about their lives. • Facebook has a number of features with which users may interact. – the Wall, a space on every user's profile page that allows friends to post messages for the user to see; – Pokes, which allows users to send a virtual "poke" to each other (a notification then tells a user that he or she has been poked); – Photos, where users can upload albums and photos; and -14© Employment Law Alliance

. – Status, which allows users to inform their friends of their whereabouts and . – Status, which allows users to inform their friends of their whereabouts and actions. Depending on privacy settings, anyone who can see a user's profile and can also view that user's Wall. • One of the most popular applications on Facebook is the Photos application, where users can upload albums and photos. • Facebook is operated and privately owned by Facebook, Inc. -15 © Employment Law Alliance

. • Factoid: The website's name stems from the colloquial name of books given . • Factoid: The website's name stems from the colloquial name of books given to students at the start of the academic year by university administrations in the U. S. with the intention of helping students to get to know each other better. • The website currently has more than 400 million active users worldwide. According to com. Score, Facebook is the leading social networking site based on monthly unique visitors, having overtaken main competitor My. Space in April 2008 and it is ranked the number 2 website. The website is the most popular for uploading photos, with 14 million uploaded daily. - 16© Employment Law Alliance

. • A 2009 Compete. com study ranked Facebook as the most used social . • A 2009 Compete. com study ranked Facebook as the most used social network by worldwide monthly active users, followed by My. Space. Entertainment Weekly put it on its end-of-the-decade 'best-of' list, saying, "How on earth did we stalk our exes, remember our co-workers' birthdays, bug our friends, and play a rousing game of Scrabulous before Facebook? ” • Many new smartphones offer access to the Facebook services either through their web-browsers or applications. Over 1. 5 million people use The Facebook i. Phone app. • By 2005, the use of Facebook had already become so ubiquitous that the generic verb "facebooking" had come into use to describe the process of browsing others' profiles or updating one's own. - 17© Employment Law Alliance

. • Twitter is a social networking and microblogging service that enables its users . • Twitter is a social networking and microblogging service that enables its users to send and read messages known as tweets. Tweets are text-based posts of up to 140 characters displayed on the author's profile page and delivered to the author's subscribers who are known as followers. Senders can restrict delivery to those in their circle of friends or, by default, allow open access. Since late 2009, users can follow lists of authors instead of following individual authors. -18 © Employment Law Alliance

. • Twitter is a more recent addition to the social networking phenomenon. Twitter . • Twitter is a more recent addition to the social networking phenomenon. Twitter asks users “What are you doing? ”, and users answer with a brief message. Twitter members can post links to articles, pictures, videos or other information about themselves or topics of interest. • As a social network, Twitter revolves around the principle of followers. When you choose to follow another Twitter user, that user's tweets appear in reverse chronological order on your main Twitter page. If you follow 20 people, you'll see a mix of tweets scrolling down the page: breakfast-cereal updates, interesting new links, music recommendations, even musings on the future of education. -19 © Employment Law Alliance

. • All users can send and receive tweets via the Twitter website, Short . • All users can send and receive tweets via the Twitter website, Short Message Service (SMS), or external applications (notably including those developed for smartphones). While the service itself costs nothing to use, accessing it through SMS may incur phone service provider fees. The website currently has more than 100 million users worldwide. • Twitter is ranked as one of the 50 most popular websites worldwide by Alexa's web traffic analysis. -20 © Employment Law Alliance

. • Although estimates of the number of daily users vary because the company . • Although estimates of the number of daily users vary because the company does not release the number of active accounts, a February 2009 Compete. com blog entry ranked Twitter as the third most used social network based on their count of 6 million unique monthly visitors and 55 million monthly visits. • In March 2009, a Nielsen. com blog ranked Twitter as the fastest-growing site in the Member Communities category for February 2009. Twitter had a monthly growth of 1, 382%, Zimbio of 240%, followed by Facebook with an increase of 228%. However, only 40% of Twitter's users are retained. -21 © Employment Law Alliance

Twitter Growth 2008 -2009 - 22© Employment Law Alliance Twitter Growth 2008 -2009 - 22© Employment Law Alliance

Company Policies - 23© Employment Law Alliance Company Policies - 23© Employment Law Alliance

Pietrylo v. Hillstone Restaurant Group • Old World/New World – As long as there Pietrylo v. Hillstone Restaurant Group • Old World/New World – As long as there are employers, there will be employees griping about their jobs. – The internet: § Incredibly quick, easy access to mass audience § That’s why advertisers use it § That’s why unions use it – A great tool but also a great problem -24© Employment Law Alliance

What is Inside Pandora’s Box? • So just what is inside Pandora’s Box? – What is Inside Pandora’s Box? • So just what is inside Pandora’s Box? – Pietrylo v. Hillstone Restaurant Group, d/b/a Houston’s, U. S. District Court New Jersey – Great case study § Interaction of social media and the workplace -25 © Employment Law Alliance

Pietrylo: Factual Background • Plaintiffs Brian Pietrylo and Doreen Marino were waiters at a Pietrylo: Factual Background • Plaintiffs Brian Pietrylo and Doreen Marino were waiters at a Houston’s Restaurant in Hackensack, NJ. • They created My. Space page with private group called the “Spec-Tator. ” • Purpose: “to vent about any BS we deal with at work without any outside eyes spying on us. This group is entirely private, and can only be joined by invitation. ” • Once invited members accepted, they could access the Spec-Tator, read or add new postings. -26 © Employment Law Alliance

The Weak Link • Pietrylo did not invite any management employees • Invited greeter The Weak Link • Pietrylo did not invite any management employees • Invited greeter Karen St. Jean • St. Jean had dinner at the home of Houston’s Manager Ti. Jean Rodriguez • St. Jean accessed the Spec-Tator on Manager Rodriguez’s computer -27 © Employment Law Alliance

The Pressure Is On • At work, another Houston’s Manager (Robert Anton) asks St. The Pressure Is On • At work, another Houston’s Manager (Robert Anton) asks St. Jean for her password • Anton contacts senior management and human resources • Regional Supervisor of Operations Robert Marana begins to access the site -28 © Employment Law Alliance

The Pressure Is On • The Spec-Tator contained: – Sexual remarks about management and The Pressure Is On • The Spec-Tator contained: – Sexual remarks about management and customers – Jokes about Houston’s “specs” for customer service and quality – Illegal drug use – Employee wine test answers – Comments about a potential union • Houston’s was not amused – terminated Pietrylo and Marino - 29© Employment Law Alliance

The Lawsuit • The Plaintiffs brought several claims based on both state and federal The Lawsuit • The Plaintiffs brought several claims based on both state and federal statutory and common law. • After summary judgment, jury trial held on the following claims: – Stored Communication Act – SCA (federal and state) – Invasion of privacy – Termination in violation of public policy § Invasion of privacy § Free speech -30 © Employment Law Alliance

Central Issues • Did the Houston’s managers knowingly, intentionally, or purposefully access the Spec-Tator Central Issues • Did the Houston’s managers knowingly, intentionally, or purposefully access the Spec-Tator without authorization? • Under SCA, if access is authorized by a user of that service, then there is no violation. • Defense Argument: St. Jean authorized Rodriguez to access the Spec-Tator by giving Rodriguez her password. -31 © Employment Law Alliance

Plaintiffs’ Counter Arguments • St. Jean felt threatened – Admitted no overt threat given Plaintiffs’ Counter Arguments • St. Jean felt threatened – Admitted no overt threat given – But she worked for Houston’s – Was asked at work by her managers to provide password – Would not have given information to coworker – “I felt I probably would have gotten in trouble” -32 © Employment Law Alliance

Jury Verdict • Did Houston’s access the Spec-Tator without authorization? – Yes. St. Jean Jury Verdict • Did Houston’s access the Spec-Tator without authorization? – Yes. St. Jean provided password “under pressure” – Thus, Houston’s accessed without authorization - 33© Employment Law Alliance

Jury Verdict • Did Houston’s managers do so intentionally, purposefully, or knowingly? – Website: Jury Verdict • Did Houston’s managers do so intentionally, purposefully, or knowingly? – Website: “private” and “by invitation only” – Houston’s managers asked St. Jean at work – Managers testified they knew St. Jean was “uneasy” – St. Jean expressed reservation after the fact – Continued access the website 5 times -34 © Employment Law Alliance

Compensatory Damages • $3400 in lost pay • Significant mitigation: went to work for Compensatory Damages • $3400 in lost pay • Significant mitigation: went to work for Morton’s Steakhouse • Parties stipulated to lost wages - 35© Employment Law Alliance

Punitive Damages • SCA allows for willful or intentional conduct • Jury Charge: Did Punitive Damages • SCA allows for willful or intentional conduct • Jury Charge: Did the managers act wantonly, willfully, or maliciously? • Significant testimony: – St. Jean felt “pressured” – Bosses admitted St. Jean uncomfortable – Managers did not inform St. Jean they would pass info “up the chain” – Not aware of “repeated” access • Parties stipulated – 4 times compensatory -36 © Employment Law Alliance

Attorneys’ Fees • Stipulations of low amounts of compensatories and punitives a smart move Attorneys’ Fees • Stipulations of low amounts of compensatories and punitives a smart move – Easier to return verdict – Recognizes Plaintiffs’ own inappropriate conduct – The “greedy get needy” – Also triggers statutory attorneys’ fees – $120, 000 - 37© Employment Law Alliance

So what is inside Pandora’s Box? - 38© Employment Law Alliance So what is inside Pandora’s Box? - 38© Employment Law Alliance

Key Issue Was the electronic information configured to be private? -39 © Employment Law Key Issue Was the electronic information configured to be private? -39 © Employment Law Alliance

How Accessible Is the Information? • Accessible by “invitation only” – (“Spec-Tator” in My. How Accessible Is the Information? • Accessible by “invitation only” – (“Spec-Tator” in My. Space – Pietrylo v. Hillstone Restaurant Group, Inc. ) • Sites that are “password protected” – (Website in Konop v. Hawaiian Airlines, Inc. ) • Access that is subject to agreement to confidentiality -40 © Employment Law Alliance

Federal Statutory Sources of Employer Liability • Stored Communications Act (SCA), 18 U. S. Federal Statutory Sources of Employer Liability • Stored Communications Act (SCA), 18 U. S. C. § 2701, et seq. – Unlawful to “intentionally access without authorization a facility through which an electronic communication service is provided” – Excepts from liability “conduct authorized by a user of that service with respect to a communication of or intended for that user” – Private right of action for money damages, 18 U. S. C. § 2701, et seq. – Actual and punitive damages; attorneys’ fees - 41© Employment Law Alliance

Wiretap Act • Wiretap Act, 18 U. S. C. § 2510, et seq – Wiretap Act • Wiretap Act, 18 U. S. C. § 2510, et seq – Prohibits “interceptions” of electronic communications. – Interception must be “contemporaneous with transmission. ” Konop v. Hawaiian Airlines, Inc. ; Steve Jackson Games, Inc. v. U. S. Secret Service. – Excepts “business extensions” (phones) and consensual monitoring/interception (policy/ employment agreement). – Private Right of action for money damages, 18 U. S. C. § 2520. – Statutory, actual and punitive damages; attorneys’ fees. -42 © Employment Law Alliance

Employer Liability under Federal Labor Laws • NLRA – Section 7: “concerted activities, ” Employer Liability under Federal Labor Laws • NLRA – Section 7: “concerted activities, ” 29 U. S. C. § 157 – Section 8: interference with union activities, 29 U. S. C. § 158 • RLA Excepts “malicious, defamatory and insulting material” Konop v. Hawaiian Airlines, Inc. -43 © Employment Law Alliance

State Statutory Sources of Employer Liability • State Privacy Acts • State statutes that State Statutory Sources of Employer Liability • State Privacy Acts • State statutes that preclude adverse employment actions based on “lawful offduty conduct” – Colo. Rev. Stat § 24 -34 -402 – N. D. Cent. Code § 14 -02/4 -03 -44 © Employment Law Alliance

Common Law Sources of Liability • Privacy torts – Invasion of privacy (Pietrylo) (“intrusion” Common Law Sources of Liability • Privacy torts – Invasion of privacy (Pietrylo) (“intrusion” and “public disclosure of private facts”) – Termination in violation of public policy – Infliction of emotional distress • Defenses – Workers compensation bar? – Immunities for public employers? -45 © Employment Law Alliance

Employer Liability Expanding? • Pietrylo verdict • Van Alsyne v. Electronic Scriptorium, Ltd. (SCA Employer Liability Expanding? • Pietrylo verdict • Van Alsyne v. Electronic Scriptorium, Ltd. (SCA claim re: accessing employee’s AOL account) – – – $150, 000: Compensation against Supervisor $75, 000: Punitive against Supervisor $25, 000: Compensatory against Company $25, 000: Punitive against Company $124, 763: Attorney’s Fees - 46© Employment Law Alliance

Pre-Policy Considerations • Team approach/effort – Human Resource to address conduct and performance – Pre-Policy Considerations • Team approach/effort – Human Resource to address conduct and performance – Seek input from IT/IS, Marketing, internal social media users • Determine company view/goal of Social Media – Total ban? Some tolerance for personal use? Recognize a business need? Embrace? -47 © Employment Law Alliance

Pre-Policy Considerations • Define Social Media – Business networking sites vs. social (personal) networking Pre-Policy Considerations • Define Social Media – Business networking sites vs. social (personal) networking sites – Blogging sites – Photosharing sites – Business contact sites -48 © Employment Law Alliance

Pre-Policy Considerations • Assess impact on other policies and agreements – Restrictive covenants (noncompete, Pre-Policy Considerations • Assess impact on other policies and agreements – Restrictive covenants (noncompete, nondisclosure, noninterference, nonsolicitation) – Use of computer systems (Internet, voicemail, etc. ) – Intellectual Property – Use of company’s logos – Photographs of employees – Confidentiality – Ethics, etc. - 49© Employment Law Alliance

What to Consider or Include in a Policy • Define Social Media – Ever What to Consider or Include in a Policy • Define Social Media – Ever changing, so do not lock yourself in • Identify by example what is acceptable to say and do – Rules may differ depending on position with company § range: absolute prohibition to acceptable business use by sales/marketing/executive personnel § e. g. , use limited to non-working time, absent business need, such as marketing team -50 © Employment Law Alliance

What to Consider or Include in a Policy • If use is permitted, be What to Consider or Include in a Policy • If use is permitted, be specific – Linked. In is okay for business purposes, but Facebook is not? – Will use of online address books, such as Plaxo, be permitted for business contacts? – Is Twitter okay as long as no disclosure of confidential business or client information? – Anonymous communications prohibited – Cannot interfere with other work -51 © Employment Law Alliance

What to Consider or Include in a Policy • Tie to compliance with other What to Consider or Include in a Policy • Tie to compliance with other policies – – Nondiscrimination, unlawful harassment Downloading of software Email, Internet, use of company property Respectful and professional communications • Address privacy expectations – Use of company equipment to access personal accounts -52 © Employment Law Alliance

Best Practices and Policy Considerations • Address restrictions on employee conduct – On duty, Best Practices and Policy Considerations • Address restrictions on employee conduct – On duty, off duty, or both? • Address ability to identify as a company employee – If permitted, is disclaimer required? § employees views personal and not those of company -53 © Employment Law Alliance

Best Practices and Policy Considerations • Address use of company’s logo/identifying information and photos Best Practices and Policy Considerations • Address use of company’s logo/identifying information and photos – Reminder to follow the law: securities, copyright, electronic communications, etc. • Reminder to think twice (at a minimum) before posting – – Publishing in a public forum Loss of control Cannot take it back Statements made have indefinite “lifespan, ” searchable forever -54 © Employment Law Alliance

Best Practices and Policy Considerations • Require responsible use in all activities (content, commentary, Best Practices and Policy Considerations • Require responsible use in all activities (content, commentary, images) – Address all sources: email, blogging, media, and networking (Facebook, Linked. In, My. Space, Twitter, etc. ) – Remind employees they are responsible, and may be liable, for what they say/post – Timely error correction -55 © Employment Law Alliance

Best Practices and Policy Considerations • Address disclosure of company, other employee, and client Best Practices and Policy Considerations • Address disclosure of company, other employee, and client information (including name of client/customers) – Distinguish between business and personal Internet postings – Restrict disclosure of personal information of other employees -56 © Employment Law Alliance

Best Practices and Policy Considerations • Prohibit unauthorized access of private accounts • Disciplinary Best Practices and Policy Considerations • Prohibit unauthorized access of private accounts • Disciplinary actions for violations • Direct questions to management – Make sure targeted persons are in the know -57 © Employment Law Alliance

On-line Resources An online database of various social media policies and guidelines is available On-line Resources An online database of various social media policies and guidelines is available at: http: //socialmediagovernance. com/policies. php? f=0 - 58© Employment Law Alliance

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