ABA Employment Law Presentation 2012

1. “Social Media & Employment
Law: Current Issues and Trends”
Deborah Gonzalez, Esq.
March 15, 2012

2. Welcome/Overview
• Introduction
• Context
• Social Media & Employment Cycle
– Hiring
– Employee Contracts
– Employee Policies
– Termination
• What to do when a dispute arises?
• Q&A

3. Introductions
Name, company, and
share a “truth” of social media.

4. Context: Stats and Facts
• There are now more than 800 million active
Facebook users, with over 200 million added in
2011.
• Around 75% of Facebook users are outside of
North America with accounts available in 70
languages.
• There are over 300 million Twitter accounts.
• Over 80% of all Americans use a social network.
• Approximately 40% of social media users access
their accounts through mobile devices.

5. Context: Stats and Facts
• Nearly 23% of online time is spent on social
networks.
• Facebook is the top destination among social
networks and blogs; average visit 20 minutes
each time.
Social Media Examiner (Nov. 2011)
http://www.socialmediaexaminer.com/26-
promising-social-media-stats-for-small-businesses/

6. Context: Stats and Facts
DLA Piper Survey
Of employees who use social media sites for personal use:
• 39% have befriended a colleague or business contact on
Facebook or LinkedIn
• 14% have posted a status update or tweeted about their
work
• 22% have posted a status update or tweeted about a work
colleague
• 28% have posted photos of colleagues or business activities
• 1% have posted confidential business information

7. Context: Stats and Facts
DLA Piper Survey
Of employers:
• 21% have taken disciplinary action because of information
an employee has posted about a co-worker
• 25% have taken disciplinary action because of information
an employee has posted about their activities at work
• 31% have taken disciplinary action because of information
an employee has posted about the organization
• 30% have taken disciplinary action because of the level of
an employee's social media use at work

8. Context: Stats and Facts
DLA Piper Survey
But only 14% of employers reported
having a social media policy that regulated
the use of social media in or outside the
workplace.

9. Situation “Out” There
The financial payouts and consequences of social
media for those involved, including vendors,
developers, and clients, are becoming more apparent.
New cases emphasizing social media mistakes costing
reputations, resources, and jobs are becoming just as
common as new releases of applications and putting
everyone on alert.

10. To note…
Facebook Post “Care to take a “sick day” and
join me at the beach on Friday?”
Another Facebook post: “What time did you get
home last night? Can’t believe we drank all
those tequila shots!”

11. Hiring
• Recruitment
• Social Media Background Checks
• “Friending” during the interview process

12. Recruitment
Social Media Examiner.com

13. Recruitment
• Using Social Media platforms to “post” a job
opening.
• How do you capture the job posting?
• How do you capture the candidate?
• Ex. LinkedIn Job Classifies, Craig’s List, Twitter,
other

14. Recruitment

15. Recruitment

16. Recruitment

17. Social Media Background Checks
http://www.youtube.com/watch?v=JmukelUppDE

18. Social Media Background Checks
• Do you know who it truly is?
• Social Media is about “transparency” and
“credibility.”
• Fraudulent Credentials on Social Media
Profiles – FTC – False advertising.
• Comparing and contrasting the written,
submitted resume and the LinkedIn or other
Social Media Profiles.
• Consent for the SM Background screening?

19. Social Media Background Checks
• Discrimination issues
• Fair credit Reporting Act (FCRA)
• Privacy Concerns
• Time Consuming
• Using third-party which supplies a report
without certain characteristics that can be
viewed as discriminatory.

20. Social Media Background Checks
Social Intelligence Corporation –
• Presents employers with reports on only employer-
defined material and filters out “protected class”
information (such as race, religion, national origin, age,
sex, familial status, sexual orientation, and disability
status) defined by federal and state anti-discrimination
law.
• Summary and detail views present easy-to-understand
results, with screenshots of pertinent material that
matches the employer’s pre-defined criteria.

21. “Friending” & the Interview
• Can you “friend” a candidate?
• What if the candidate was already your friend?
• Will it appear as “duress” – pressuring them to
friend you if they want the job?
• Will it give them false hope?
• Can the candidate friend the interviewees?
• Can the interview committee post anything on social
media about the interviews and/or the candidates?
Remember: What you cannot do offline you cannot do
online.

22. “Friending” During the Interview
http://www.youtube.com/watch?v=Q0RdmhSO-wA

23. Contracts & Agreements
Law student tweet “just got a job offer! Selling my
soul to the devil for financial stability!”
• Use of Social Media for Offer/Acceptance
• Use of Social Media during
announcement/adaptation period
• Agreement Clauses of ownership of social media
accounts, online posted content, social media use
on and off the job

24. Social Media Policy
Important to have – can protect the organization from
being liable for employee actions not done on behalf of
organization.
Needs to be written and accessible to all employees.
What other policies does it relate to?
– IT/Computer Policy/Email Policy
– Privacy/Confidentiality
– Consistency, Accessibility
Employees should be “trained” on the policy and sign a
copy to be kept in HR.

25. Social Media Policy
Components:
• Identify benefits of social media
• Address the risks of social media
• Designate contact person(s) for people to consult
with in regards to this policy (name, title, contact
info including telephone, email and/or other
communications contact)
• Describe firm’s expectations, the fact that
individuals are going to be responsible for their
online activities

26. Social Media Policy
Components:
• Requirement of protection of client and firm
confidences Address jurisdictional rules on advertising
and disclosure to solicit new clients (especially for
regulated industries)
• Firm reserves the right to take disciplinary action
against who violates – and must outline what those
actions may be
• Does the policy state that the company reserves the
right to monitor use of social media by employees
while the employee is using company equipment?

27. Social Media Policy
“Employers should review their Internet and
social media policies to determine whether they
are susceptible to an allegation that the policy
would ‘reasonably tend to chill employees’ in
the exercise of their rights to discuss wages,
working conditions and unionization.”

28. Termination
• When can an employer terminate over social
media use?
• “Concerted Protected Activity” (NLRB)
• Discovering & preserving evidence to “justify”
termination
• What happens when they are gone?
(Badvocacy)

29. What to do When a Dispute Arises?
• The “exit” interview.
• What to tell the client about what not to do
(spoilation of evidence)
• Disclosure of private or confidential
information
• Social Media Investigation

30. Q&A

31. Thank you!
Deborah Gonzalez, Esq.
Law2sm, LLC
404-857-1331
www.law2sm.com
deborah@law2sm.com