This document discusses various employment law issues related to social media. It begins by noting the significant risks employers face from the growth of social media, including public relations issues and legal liability. It then addresses legal issues regarding screening candidates' social media, monitoring current employees' social media, and references for former employees. The document provides recommendations for employers, such as having a clear social media policy and training employees on it. It concludes by discussing National Labor Relations Board limits on social media policies.

1. Employment Law Issues in
Social Media
Andrew Rosenman
Partner, Chicago
+1 312 701 8744
arosenman@mayerbrown.com
Mayer Brown is a global legal services organization comprising legal practices that are separate entities ("Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States;
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2. Why Should Employers Be Vigilant About
Social Media?
Significant public relations, liability and legal repercussions can arise
in the employment context from the explosive growth of social media:
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3. Email 2.0
Legal Issues re email Legal Issues re Social Media
• More communication • Lifecasting
• More informal • Blurring the lines between
communication (led to public and private, business
issues) and personal
• Retention issues • Whose information is it?
• After some growing pains, • Who needs to retain it?
companies got control
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4. Same Legal Principles
• At the stage where old rules are being applied to a new
technology—uncertainty
• New risks—legal and otherwise
– Consumers have as loud a voice as advertisers
– Employees have as a loud a voice as employers
• Companies face external issues (e.g., what company and
its employees are saying to the world)
• Companies face internal issues (e.g., how are employees
using Social Media)
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5. BEFORE, DURING AND
AFTER EMPLOYMENT
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6. BEFORE EMPLOYMENT
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7. Screening Candidates
• Employers often differ in how they handle social media in
screening candidates, even within the same industry
– October 2010 informal survey
• Some employers find it useful to search social media sites
to screen candidates—and many others plan to do so
• Can find some great information
– Personality
– Integrity
– Communication style
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9. But Be Careful …
• Can also find information that is protected by Title VII and
various state laws
– Age, race, national origin, sexual orientation
– Religious beliefs
– Marital status
– Pregnancy
– Political affiliations
– Information about disabilities
• Can’t be basis of the decision—and need to be able to
prove that
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10. Recommendations
• Non-decision maker screen—pass along form with only
appropriate information
• Keep records associated with hiring decisions (Title VII)—
including print-outs of SM pages and the resulting forms
• Disclose to applicants that SM pages may be searched
• Treat all applicants consistently (i.e., don’t only search SM pages
of a certain applicant category)
• Careful what sites are searched:
– Fair Credit Reporting Act prohibits employers from getting criminal
history from “consumer reporting agency” without the subject’s
notice and consent—and employer relying on an consumer reporting
agency’s report must give adverse action notice
– Some search engines have been accused of being a “consumer
reporting agency”
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11. DURING EMPLOYMENT
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12. Some Considerations for Employers
• Consider specific corporate culture and social media
– Ban it during work hours? Encourage it? Remain neutral?
– Impact on employee morale?
• Benefits to company of social media use by employees
– May help promote brand recognition and marketing
– Increased contact with customers, sales, and PR
• Business and legal risks of social media use by employees
– Disclosure of business plans/strategies, financial data, etc.
– Can damage reputations
– Privacy issues, false advertising, regulatory requirements
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16. Should You Monitor Current Employee
Activity?
• Some reasons to do it
– Make sure use of social media is not interfering with work
– Make sure employees are following company policies
• May help prevent false advertising claims when
employees comment on the company or its business
– FTC Guideline (16 CFR § 255): liability for failing to disclose
material connections with endorsers
• Monitoring use on company time less problematic
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17. But Caution Should Be Taken If Monitoring
Occurs
• Many states don’t allow adverse employment actions for legal
off-duty conduct (e.g., California, Colorado, New York, North
Dakota)
– Could lead to invasion of privacy claims and class actions (blurred line)
– Risk of discrimination, retaliation and whistleblower claims
• State statutes addressing electronic monitoring
– Connecticut and Delaware require notice to employees in advance of
monitoring computer usage and work e-mails.
– California, Colorado, Indiana, Oklahoma, South Carolina and Utah
require employers to obtain consent before monitoring.
• Common law right to privacy
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18. Stored Communications Act
• 18 U.S.C. § 2701 sets forth penalties for anyone who:
– Intentionally accesses without authorization a facility through
which an electronic communication service is provided
• Stored Communications Act (SCA) arguably prohibits
employers from monitoring employees’ online activity
without proper authorization
• Employees may claim that information was gained
through misrepresentations or other unlawful means,
e.g., ghost accounts
– Pietrylo v. Hillstone Restaurant Group, 2009 U.S. Dist. LEXIS
88702 (D.N.J. 2009) (jury verdict upheld under SCA)
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19. AFTER EMPLOYMENT
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20. What About References (e.g., LinkedIn)?
• Former (or current) employees may ask for a reference
– “Grade inflation” and/or sweeping endorsements about skills
– Risk that statements will be inconsistent with termination, litigation,
or discipline positions that employer takes
• Trend in best practices: policy against allowing employees to
endorse or recommend on LinkedIn or other sites
– Beware of set up for defamation or pretext claim
– At minimum, require supervisors to consult with HR first
• Restrictive Covenants/Non-solicitation/Non-Competition
– TEKsystems, Inc. v. Hammernik – (D. Minn. 2010) former employee
contacts former co-workers and clients for rival firm through LinkedIn
– Draft restrictive covenants to include social media
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21. SOCIAL MEDIA POLICY
TAKE-AWAYS
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22. Why Have Social Media Policy?
When the right
Provide the tools choices are made,
to make the right opportunities are
choices when maximized &
inevitably engaged reputational &
in social media legal risk are
mitigated
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23. Social Media Policy Fundamentals
• Focus: Customized to specific business needs; focus on content, not access
• Owner: Will vary, but typically will involve legal, communications,
compliance, HR, technology
• Who: Applies to all employees in all business lines and across all
subsidiaries and affiliates; consider agents and contractors
• When: Applies while using social media both at work and outside of work
when communications and activities directly or indirectly relate to the
company, or when the individual’s relationship with the company is known,
identifiable or can be presumed
• How: Design policy to work with other complementary policies (conduct,
internet usage, communications, privacy, confidentiality, employment) &
training
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24. Recommendations, Part 1
• Adopt a social media policy with specific guidance on what is, and what is
not, permissible, which will provide clarity to employees
– Minimizes potential impact of ambiguities
• Stengart v. Loving Care Agency, Inc. (“As written, the Policy creates
ambiguity about whether personal e-mail use is company or private
property”)
• City of Ontario v. Quon (“employer policies concerning communications
will of course shape the reasonable expectations of their employees,
especially to the extent that such policies are clearly communicated”)
• Ensure that the policy states that the company may monitor all uses of
workplace computers, including use of social media. Disclose if monitoring
personal devices.
• Expressly incorporate other key policies (e.g., discrimination, harassment,
confidentiality, non-disparagement, technology, codes of conduct)
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25. Recommendations, Part 2
• Check the scope of applicable off-duty conduct laws before taking action
– Unflattering conduct (e.g., video of drunken behavior) might not be
grounds for disciplinary action
• Provide repeated training and reminders about the policy
• Remember the 21st Century proverb: “What happens in Vegas stays in
Vegas on MySpace, Facebook, Twitter, etc.”
• Make clear who can and cannot speak on the company’s behalf
– Stress importance of refraining from creating appearance that
employees may be speak on behalf of company; consider disclaimer
language
– Prohibit anonymity; employees must disclose who they work for when
commenting on company or its business
• Don’t be afraid to revisit social media policies; business needs may change
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26. Recommendations, Part 3
• Inform employees about approved procedures and company policies
regarding endorsements of company products
• Explain the risks of false advertising associated with company products, as
well as potential defamation of competitors
• Preclude use of company logos, likenesses, images and trademarks without
the company’s written consent
• Prohibit employees from including references to company clients,
customers, and partners without their written consent
• Require employees to sign acknowledgments of receipt of the policy
• If necessary and appropriate (e.g. securities industry), ensure policy
informs employees if off-duty use will be monitored (should decrease
reasonable expectation of privacy)
• FINRA Regulatory Notice 10-06 (addresses use of SM for business purposes)
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27. Smart Phone Policies
• Employers are increasingly allowing employees to use
their personal smart phones for corporate use. In doing
so, they should insist on certain precautions:
– Workers must use the password feature on their phone to
protect any work emails or attachments
– If a phone is lost or stolen or an employee leaves, the employer
is allowed to erase the phone remotely
– For companies subject to HIPAA rules, there is software to carve
out a part of an employee’s device strictly for corporate use
which, among other things, doesn’t allow attachments to be
forwarded and can erase information remotely
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28. National Labor Relations Board Sets Limits on Social
Media Policies Even for Non-Union Employers
• National Labor Relations Act gives workers a right to form unions and
prohibits employers from punishing workers, whether union or nonunion,
for discussing working conditions or unionization
• In The Matter Of American Medical Response Of Connecticut, Inc. –
Employee fired for criticizing boss on Facebook. Government prosecuted
and demanded change to blogging and Internet policy – employees are
permitted to criticize the company on blog and Internet.
• New York Newspapers Guild & Thomson Reuters – Reporter sent tweet to
Reuters -- “one way to make this the best place to work is to deal honestly
with guild members” and was verbally disciplined. NLRB prepared to issue
complaint against Reuters. Company agreed to new policy “to protect
employee speech.”
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29. Contact Information
Andrew Rosenman
Partner, Chicago
+1 312 701 8744
arosenman@mayerbrown.com
To request a copy of “The Social Media Revolution: A Legal
Handbook,” please visit:
www.mayerbrown.com/SocialMediaRevolution
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