Workplace Privacy, Data Management & Security Report : Privacy Lawyers & Attorneys : Jackson Lewis Law Firm : Data Security, HIPAA & Confidentiality Issues

Earlier this year, we posted about new laws in Utah and New Mexico that limit employers' ability to access the online accounts of their employees. Since then, Washington and Colorado have joined these and other states, such as Maryland, Illinois, California, Michigan, that have enacted similar laws. Oregon and New Jersey appear to be not far behind regulating employers in this area. 

Increasingly, employers across the country will need to revisit some of the hiring and monitoring practices they may be following, in particular, those of lower level managers and supervisors who may not be aware of these developments. Companies also need to reconsider what role they want employees to play in the businesses' marketing strategies in social media.  

Colorado. Governor John Hickenlooper signed HB 13-1046 into law on May 11, 2013. Under the new law, employers may not "suggest, request or require" or cause employees or applicants to (i) disclose the means of accessing the employees or applicants' personal account or service through the employees or applicants' electronic communication device, or (ii) change their privacy settings for an associated social networking account. An employer also may not compel an employee or applicant to become a friend, contact or connection of the employer or the employer's agent. Employers may not fail or refuse to hire applicants, or discipline or otherwise penalize employees, who refuse to provide access to their personal accounts or add the employers to their contacts.

The good news for employers is that the law does not prohibit them from requiring employees to provide access, including user name and password, to non-personal accounts or services that allow access to employers' information systems. The law also does not prohibit certain employers (those in certain industries (e.g., securities, finance) who have to comply with certain regulatory requirements) from conducting investigations concerning the use of personal websites, web-based accounts or similar accounts by an employee for business purposes. The same is true for investigations involving the unauthorized downloading of employer proprietary or financial information to a personal website, web-based account or similar account.

The new Colorado law does not provide for a private right of action, but injured persons may file a complaint with the Department of Labor and Employment, which may impose fines of up to $1,000 for a first offense, and not more than $5,000 for subsequent offenses.   

Washington. Gov. Jay Inslee signed a similar law (SB 5211) on May 21, 2013, that contains restrictions on employers concerning the personal online accounts of their employees. The law also contains similar exceptions concerning employee investigations. The law becomes effective on July 28, 2013. 

Oregon. Last week, the Oregon legislature sent HB 2654 to the Governor's desk for signature. Like the two measures above, the law would prohibit employers from requiring or requesting access to the personal social media accounts of employees or applicants, as well as prohibiting employers from requiring employees or applicants to make the employer a contact or connection of the employer. Unlike the laws discussed above, the current version of the bill does not include an investigation exception.

New Jersey. Responding to Governor Chris Christie's concerns about a prior version of the bill (such as objecting to a provision that would have made it illegal to ask an employee if he or she has a Facebook account), the New Jersey General Assembly recently approved unanimously modifications to A2878, making it virtually certain to become law in New Jersey in the short term. The Governor has already signed a similar law protecting access to the social media accounts of university students and applicants.

Similar to the laws described above, A2878 would prohibit employers from requiring or requesting employees or applicants to disclose login information for their personal social media accounts. The law also proscribes retaliating or discriminating against any employee or applicant who fails to provide such information, reports a violation of the law, participates in an investigation or otherwise opposes a violation of the law. However, the new version of the law no longer provides for a private right of action, but civil penalties can be imposed for violations - up to $1,000 for the first violation,  $2,500 for each subsequent violation.

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Our colleague John A. Snyder writes on our non-compete blog about the case of Eagle v. Morgan, No. 11-403 (E. D. Pa. March 12, 2013) in which the plaintiff sued her former employer for misappropriating her LinkedIn account and was awarded zero damages.

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A New Jersey District Court has sanctioned a personal injury plaintiff for spoliation following the plaintiff’s deletion of his Facebook account which defendants were trying to access.  

The defendant’s discovery requests asked for documents or records of “wall posts, comments, status updates or personal information posted or made by plaintiff on Facebook and/or any social media website from 2008 through the present.” Later, the defendant sent forms for plaintiff to execute which would authorize Facebook and other sites to release plaintiff’s information. The plaintiff executed all the authorizations except the one for Facebook.

Plaintiff’s failure to execute the Facebook authorization was raised before the Court and the Court ordered plaintiff to execute the authorization.  Plaintiff agreed to enable access by changing his password to a certain word. Thereafter, defense counsel accessed the account to confirm the password change and printed some of the accounts content.  

The following day, Facebook notified plaintiff of the account access from an unknown IP address in New Jersey. Plaintiff notified his counsel who contacted defense counsel to confirm that the records would be sought from Facebook headquarters. Defense  counsel responded, explaining the account was accessed to confirm the password change but would not be accessed again as the authorization was sent to Facebook.

Facebook responded to the authorization advising that the Stored Communications Act barred it from disclosing the data but suggested having plaintiff download the content himself.    Counsel for the parties agreed that plaintiff would do so and turn over a copy, along with a certification that he had made no changes since he was first ordered to execute the authorization. However, plaintiff’s counsel later advised defendants that plaintiff had deactivated the account and could not reactivate it. The plaintiff claimed he deactivated the account because of the notification he received that unknown people were accessing his account without his permission.

The defendants moved for sanctions claiming that the deletion was intentional as postings contained in the deleted account would have helped refute plaintiff’s damages claim. Defendants based this assertion on content printed from the account prior to deactivation.  The Court rejected plaintiff’s argument that the information contained in the account was not intentionally suppressed and found that even if plaintiff did not intend to deprive defendants of the data, he intentionally deleted the account and thereby failed to preserve relevant evidence.

This case, as well as the case discussed here, provide valuable authority for accessing social media content in litigation. 

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Prepared by Jason Gavejian and Joseph Lazzarotti

In honor of National Data Privacy Day, we have laid out 13 key issues affecting businesses in 2013. While the list is by no means exhaustive, it does provide critical areas businesses will need to consider in 2013.

1. BYOD. As advancements in technology continue at a breakneck pace, many businesses are confronted with the idea of implementing a Bring Your Own Device (“BYOD”) program. Under these programs, employees are permitted to connect their own personal devices to the company’s networks and systems to complete job tasks either in the office or working remotely. While BYOD programs have advantages, they also have associated risks. Developing a thorough implementation strategy with appropriate policies is critical.
2. Bans On Requesting Social Media Passwords. As we have previously discussed  fourteen states introduced legislation in 2012 which would prohibit employers from requiring current, or prospective, employees to disclose a user name or password for a personal social media account. Six states have passed and/or enacted such legislation and it is anticipated that other states will pass similar measures in 2013.
3. Final HIPAA Regulations. On January 17, 2012, the Office for Civil Rights released final privacy and security regulations under the Health Insurance Portability and Accountability Act. In addition to incorporating the HITECH Act which, among other things, expands the application of the rules to business associates, the final rules also apply the rules to subcontractors and remove the risk of harm trigger for data breaches affecting unsecured protected health information.
4. Disaster Recovery Plans. Hurricane Sandy caused extensive damage on the east coast in 2012, greatly affecting not only personal residences, but many businesses up and down the coast. Unfortunately, protecting information and technology assets from natural disasters and other emergencies is often an afterthought. However, developing a comprehensive disaster recovery plan now can avoid the significant expense, and often irretrievable loss of data, associated with natural disasters.
5. Develop a Plan for Responding to a Breach Notification. All state and federal data breach notification requirements currently in effect require notice be provided as soon as possible. Delays in notification viewed as unreasonable could trigger an inquiry by the state’s Attorney General, or in the case of HIPAA protected health information, the Office of Civil Rights. This is true even when the number of individuals affected is relatively small.
6. Investigating Social Media. As the use of social media continues to grow throughout the world, it is only natural that social media content is being sought to aid in litigation. While public content may generally be utilized without issue, if private content is accessed improperly, serious repercussions can follow. This is especially true for attorneys and their staff who attempt to aid their clients by accessing social media content.
7. International Data Protection. More and more company information is being stored in electronic format and shared with various corporate divisions through company intranets or email. While U.S. law requires some safeguarding of this information, international protections on personal information can be much more stringent. When the transfer of data across international borders is possible, or actively occurring, companies should be advised on the potential risks and requirements associated with same.
8. Develop a Written Information Security Program. Even if adopting a written information security program (WISP) to protect personal information is not an express statutory or regulatory mandate in your state, having one is critical to addressing information risk. Not only will a WISP better position a company when defending claims related to a data breach, but it will help the company manage and safeguard critical information, and may even help the company avoid whistleblower claims from employees. For some companies, a WISP can be a competitive advantage. Of course, in states like Massachusetts, Maryland, Oregon, Texas, Connecticut and others, a WISP in one form or another is required.
9. Risk Assessment. Many businesses remain unaware of how much personal and confidential information they maintain, who has access to it, how it is used and disclosed, how it is safeguarded, and so on. Getting a handle on a business' critical information assets must be the first step, and is perhaps the most important step to tackling information risk. You simply can’t adequately safeguard something you are not aware exists. And failing to conduct a risk assessment may subject the business to penalties under federal and/or state law.
10. Insurance. Like many other risks, information risk can be addressed in part through insurance. More carriers are developing products dealing with personal information risk, and specifically data breach response. This kind of coverage should be a part of any CIO, privacy officer or risk manager’s toolkit for safeguarding information.
11. Training. A necessary component of any WISP and a required element under most federal and state laws mandating data security is training. In addition to meeting compliance requirements, training employees and supervisors also will aid in defending any potential breach of privacy claim that may be asserted against the company.
12. Carefully Integrate New Technologies. As businesses look for new technologies to increase productivity, cut costs, and gain a competitive advantage, how those technologies address information risk must be a factor in the decision to adopt.
13. Watch for New Legislation. Today, managing data and ensuring its privacy, security and integrity is critical for businesses and individuals, and is increasingly becoming the subject of broad, complex regulation. As no national law requiring the protection of personal information has yet to be passed in the U.S., companies are left to navigate the constantly evolving web of growing state legislation. Companies therefore need to stay tuned in order to continue to remain compliant and competitive in this regard.

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Unless you have been living under a rock from the past 24 hours, you are familiar with the story of Notre Dame linebacker, and Heisman Trophy runner up, Manti Te’o.  

As first reported by Deadspin.com it appears that the story of Manti Te’o’s “girlfriend” and her apparent death at the hands of leukemia were an elaborate hoax.  Deadspin’s article seems to imply that Manti Te’o was somehow involved in this hoax, while CNN.com reports that both Te’o and Notre Dame have insisted that he was simply a victim. 

Lennay Kekua, the name of the “girlfriend,” is apparently only known through several social media accounts maintained in that name.  However, Deadspin reports that it was able to locate the woman whose picture was utilized as the profile picture for Kekua.  According to that woman, the picture used was her public Facebook profile shot.  Similarly, she informed Deadspin that other pictures reporting to be “Kekua,” were actual taken from several of her social media accounts.  

While the details of this story continue to unfold, the story highlights one of the biggest risks of information obtained through social media; reliability.   As evidenced by the Te’o story, it is not difficult for someone to obtain a photograph of an individual and begin social media interactions in either that person’s name, or utilizing that person’s likeness.  Although this story illustrates one way such a “hoax” could occur, it is easily conceivable that a “fake” social media account could be utilized to post discriminatory, hurtful, or insensitive comments in the name of another.  While we have previously highlighted some of the issues surrounding an employer’s search of social media for employees or prospective employees, in this instance, “fake” comments could easily cost an individual a job, or a prospective job.  While the individual may lose out on employment, it is also possible that the employer is losing an excellent employee due to false information. 

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Written by Jason Gavejian

One of the hottest topics throughout 2012 was the various states which passed, or enacted, legislation which prohibits employers from requiring current, or prospective, employees to disclose a user name or password for a personal social media account, such as Facebook or LinkedIn. In fact, this issue was recently featured in an article on nbcnews.com.   

Notably, fourteen states introduced such legislation in 2012, with Michigan becoming the most recent state to enact such legislation when Governor Rick Snyder signed his state’s equivalent law (HB 5523) last Friday. As we have discussed, California, Delaware (dealing with students at colleges and universities), Illinois, Maryland, and New Jersey (pending Governor's signature) also enacted laws on this issue in 2012.

We anticipate that other states will address this issue through legislation in 2013 and beyond. It is essential for businesses to be conscious of these new laws, and to carefully consider this issue whether or not the state in which they operate currently prohibits such conduct.
 

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Here is a link to a post on our sister blog Non-Compete and Trade Secrets Report entitled LinkedIn Account at Center of Lawsuit.  The case involves a dispute over control of a LinkedIn account between a company and its former President. The litigation may portend more disputes between employers and employees over social media accounts in the future.

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Late last week, California Governor Jerry Brown "took to Twitter, Facebook, Google+, LinkedIn and MySpace to announce that he has signed two bills that increase privacy protections for social media users in California."

As discussed, one of the bills, A.B. 1844, updates California's Labor Code to significantly limit when employers could ask employees and job applicants for social media passwords and account information. However, the law permit employers to request an employee to divulge personal social media activity reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations. This exception  applies so long as the social media is used solely for purposes of that investigation or a related proceeding.

The other bill, S.B. 1349, establishes a similar privacy policy for postsecondary education students with respect to their use of social media. While the bill prohibits public and private institutions from requiring students, prospective students and student groups to disclose user names, passwords or other information about their use of social media, it stipulates that this prohibition does not affect the institution’s right to investigate or punish student misconduct

The new laws take effect Jan. 1, 2013.

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Two New Jersey defense lawyers face attorney ethics charges in connection with the way they allegedly accessed Facebook. Regardless of how these charges are resolved, the facts in the case should serve as a reminder to attorneys to become more familiar with social media, and perhaps be more specific in the direction they give to their staff.  

The New Jersey Office of Attorney Ethics (OAE) alleges that John Robertelli and Gabriel Adamo caused a paralegal to "friend" the plaintiff in a personal injury case so they could access information on the plaintiff’s Facebook page that was not publicly available.  The OAE alleges that the conduct violated Rules of Professional Conduct governing communications with represented parties, along with other rules.  Both attorneys deny the charges and claim that they only directed the paralegal to do general internet research, and that they did not tell her to add the plaintiff as a “friend” to gain access to otherwise private information. 

The Facebook access came to light during deposition questioning when the plaintiff was asked very specific questions about his travel, dancing, wrestling, or activities which would tend to disprove his claims as to the seriousness of the injuries he allegedly suffered after being struck by a police cruiser while doing push-ups in a driveway.   

The attorneys are charged with violating RPC 4.2, concerning communications with represented parties; 5.3(a), (b) and (c), failure to supervise a nonlawyer assistant; 8.4(c), conduct involving dishonesty and violation of ethics rules through someone else's actions or inducing those violations; and 8.4(d), conduct prejudicial to the administration of justice. Mr. Robertelli, the supervising partner, is also charged with breaching RPC 5.1(b) and (c), which impose ethical obligations on lawyers for the actions of attorneys they supervise.

While no New Jersey ethics opinion to date addresses “friending” individuals in connection with litigation, the bars of New York, New York City, Philadelphia, and San Diego have deemed it unethical.

These OAE charges, along with other New Jersey legal precedent, highlights the concerns and issues surrounding improper access to otherwise private social media content. 

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Updating an earlier post, California A.B. 1844 is on its way to Gov. Jerry Brown. If signed into law, the bill would update California's Labor Code to significantly limit when employers could ask employees and job applicants for social media passwords and account information. However, the law would still permit employers to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations. This exception would apply so long as the social media is used solely for purposes of that investigation or a related proceeding.

If A.B. 1844 becomes law, it would join Maryland and Illinois which have enacted similar laws.

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The District Court of New Jersey recently denied an employer’s motion to dismiss a former employee’s causes of action for invasion of privacy following a supervisor’s alleged unauthorized access to the employee’s Facebook account. 

In Ehling v. Monmouth-Ocean Hospital Service Corp., the plaintiff, a registered nurse and paramedic, alleged that the defendants engaged in a pattern of retaliatory conduct as soon as she became President of the local union. Specifically, the plaintiff alleged that defendants gained access to her “private” Facebook account by having a supervisor summon another employee, who was “friends” with the plaintiff, into an office and coercing or threatening that employee into accessing their Facebook account so that the supervisor could view those posts which the plaintiff had restricted to only her “friends.”   Plaintiff went on to allege that the supervisor then viewed and copied plaintiff’s Facebook postings. One such post was in regard to a shooting that took place at the Holocaust Museum in Washington, DC and stated:

An 88 yr old sociopath white supremacist opened fire in the Wash D.C. Holocaust Museum this morning and killed an innocent guard (leaving children). Other guards opened fire. The 88 yr old was shot. He survived. I blame the DC paramedics. I wasn’t to say 2 things to the DC medics. 1. WHAT WERE YOU THINKING? and 2. This was your opportunity to really make a different! WTF!!!! And to the other guards…go to target practice.

Ultimately, in June 2009 the Hospital sent letters regarding the above posting to the New Jersey Board of Nursing and the New Jersey Department of Health, Office of Emergency Medical Services as it was concerned that Plaintiff’s Facebook posting showed a disregard for patient safety. Plaintiff alleged the letters were malicious and meant to damage her professionally.

The Court dismissed plaintiff’s New Jersey Wiretapping and Electronic Surveillance Control Act (“NJ Wiretap Act”) claim holding that the NJ Wiretap Act only protects those electronic communications which are in the course of transmission or are backup to that course of transmission. As plaintiff’s allegations involve a “live” posting, it did not fall under the purview of the NJ Wiretap Act. 

However, the Court went on to hold that plaintiff’s common law invasion of privacy claim involving defendants’ unauthorized “accessing of her private Facebook postings” could proceed. In relying on another New Jersey district court case which involved a supervisor’s asking an employee to gain access to a private social media account, the Court held that privacy determinations are made on a case-by-case basis, in light of all the facts presented. The Court went on to hold that the plaintiff had a plausible claim for invasion of privacy as she may have had a reasonable expectation that her Facebook posting would remain private, considering that she actively took steps to protect her Facebook page from public viewing.   

As we have mentioned before, legal guidance involving the utilization of social media in employment decisions is ever evolving and employers must remain vigilant as courts continue to develop these cases.  

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Today, the NLRB's Acting General Counsel posted a third report regarding social media issues which have been brought to the agency. The cases discussed in this report should provide further guidance to employers struggling with developing strategies for using social media in their business, developing employee policies regulating activity in social media, and enforcing those policies. In six of the seven cases discussed, the General Counsel's office found some provision of the employer's social media policy to be lawful.  In the other case, the entire policy was found to be lawful.  Look for follow up analysis from us and our Labor Partners.

Please also check out our prior reporting on social media developments. 

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A Virginia district court recently held that an employee’s clicking of the Facebook “like” button is not comparable to speech. Accordingly, the court affirmed the dismissal of First Amendment retaliation claims brought by employees of a Virginia sheriff’s office finding that the employees’ action was insufficient to merit constitutional protection.

Sheriff B.J. Roberts of the Hampton, Virginia Sheriff’s Office was up for re-election in 2009. Employees within the sheriff’s office alleged that Sheriff Roberts learned that the employees were supporting his opponent when the employees “liked” the opponent's Facebook page. After he was re-elected, Sheriff Roberts terminated the employees allegedly due to staff reductions and performance issues.

The employees sued Sheriff Roberts alleging that he violated their First Amendment rights to freedom of speech and freedom of association when he unlawfully fired them for actively supporting his political opponent.

The U.S. District Court for the Eastern District of Virginia rejected the employees' claims because the employees failed to allege that they had engaged in protected expressive speech when they “liked” the opponent's Facebook page. The court explained that without existing speech warranting First Amendment protection, the employees could not prove a violation of the right to freedom of speech occurred. The court held that “merely ‘liking' a Facebook page is insufficient speech to merit constitutional protection. In cases where courts have found that constitutional speech protections extended to Facebook posts, actual statements existed within the record.”

While this case may be helpful in the context of public employees, private employers must still be conscious of several issues including: how they obtain social media information about their employees; potential NLRB issues if an employee’s “likes” could be considered protected concerted activity; and potential state constitutional protections of an employee's right to privacy.

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Have you ever reviewed the Facebook or LinkedIn profile or other social media activity of an employee or applicant? How about requiring employees or applicants to provide access to social media activity as a condition of employment. The Maryland and Illinois legislatures would like to limit employers' ability to engage in this kind of activity with new laws that would be the first of their kind in the nation.

UPDATE - Newly enacted Maryland law prohibits employers from demanding access to Facebook or other on line accounts of employees and applicants.

Maryland. Under one version of the law in Maryland, H.B. 364, employers would not be permitted to

• require an employee or applicant . . . to disclose any user name, password, or other means for accessing any internet site or electronic account through an electronic device, or
• require an employee to install on the employee's personal electronic device software that monitors or tracks the content of the electronic device.  

Under this bill, the employer could not discipline the employee or refuse or fail to hire the applicant for not complying with such requests. However, an employer could require an employee to disclose username, password or other means of access to the employer's internal computer or information systems. 

The provision that would prohibit employers from monitoring or tracking content on electronic devices would present a dilemma for employers faced with various legal and ethical obligations to safeguard personal and other confidential data. Many employers are struggling to find ways to track, limit, and in some cases encrypt, personal and other confidential information maintained on portable electroinc devices, including the personal devices of employees. This bill would make that process more challenging, particulalry for businesses with nationwide operations in heavily regulated businesses such as healthcare, insurance, finance and so on.   

Two other bills (H.B. 310, S.B. 434) also are being considered that would prohibit public and nonpublic colleges and universities from making similar demands on students and applicants.

Illinois. The Illinois law being considered (H.B. 3782) would make it unlawful for "any employer to ask any prospective employee to provide any username, password, or other related account information in order to gain access to a social networking website where that prospective employee maintains an account or profile."

Existing Risks with Searching/Monitoring the Social Media Activity of Employees or Applicants. The Maryland and Illinois laws, if passed, may be the first of their kind, but they certainly are not the first risks employers have faced when engaging in this kind of activity. In fact, there are a range of existing risks employers must consider, such as

• Finding medical information protected under the American with Disabilities Act or the Genetic Information Nondiscrimination Act.
• Acting inconsistently when similar information is found about different applicants/employees/executives.
• Acting on information that is not true.
• Intruding into private areas.  
• Failure to document the steps taken in conducting the search.
• Not realizing the Fair Credit Reporting Act may apply and require consent and notice requirements.
• Unlawfully limiting protected concerted activity under the National Labor Relations Act.

Employers therefore need to proceed carefully when using social media as a tool for making decisions concerning hiring, promotion, discipline, and termination.  Assessing whether to engage in such activity, how and when to do so, who should be authorized to search and monitor in this way, and what training should be provided can go a long way to minimizing these risks.

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In connection with its coverage of national signing day, ESPN.com recently highlighted that social media is increasingly being utilized by coaches to contact, recruit and gather information about players. For players, it's a way to get recruited, control the message and interact with fans and other recruits at unprecedented levels.  And, like in the workplace, misuse of the media can have unfortunate consequences. A New Jersey high school prospect recently found this out when he was expelled from Don Bosco Preparatory after questionable posts were viewed on his Twitter account.  We have noticed similar trends and similar missteps in the employment context, where social media is often being utilized by companies and employees without first being well thought out. 

While the NCAA does provide some social media regulations, online interaction is far less regulated than more “old fashioned” forms of communication. According to Gregg Clifton, Co-chair of the Jackson Lewis’ Collegiate and Professional Sports Industry Group, “The days of face-to-face interaction between coach and recruit have been forever transformed. While the NCAA limits direct phone contact and texting by coaches to recruits, current NCAA regulatory freedom still permits coaches to use social media to contact, recruit, and gather information about players they are considering for their programs.” Similarly, both state and federal employment law struggle to keep up with the ever expanding social media realm.  This was most recently highlighted by the NLRB General Counsel’s report on social media. Consequently, even for employers that do have social media policies, they often do not address key issues such as the company’s presence on-line, regulatory requirements that apply in their industry, and how managers and supervisors should and should not be using the medium. In fact, as shown by many of the NLRB’s rulings discussed in the recent report, many policies contain overbroad proscriptions that violate a variety of laws.  

To keep up with social media, some schools are hiring individuals to monitor the social media of prospective student-athletes and to make sure that improper interaction is not occurring, as well as to ensure confidential information, such as under FERPA, is not being disclosed.  Employers too are seeking to hire individuals to not only assist in utilizing social media for marketing, but also individuals who can monitor how social media is and should be utilized in employment decisions.  This is particularly true for statutes and regulations which one may not necessary link with social media.  For example, employers often don’t realize that they may improperly acquire genetic information in violation of the GINA by “friending” or “following” employees or applicants. 

Of course, schools also are employers…so, while universities and colleges need to institute effective policies and procedures to address their use of social media in recruiting, they also must address social media usage in the employment context.  

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Today, the NLRB's Acting General Counsel posted a second report concerning social media issues and the National Labor Relations Act. The cases discussed in this report should provide further guidance to employers struggling with developing strategies for using social media in their business, developing employee policies regulating activity in social media, and enforcing those policies. Look for follow up analysis from us and our Labor partners.

Check out our prior reporting on related developments.

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The ECRI Institute recently published an excellent summary of key issues for hospitals concerning social media (registration required), a valuable read for any hospital administrator, risk manager or human resources director. ECRI reports that approximately 4,000 U.S. hospitals own social media sites and that number is sure to grow significantly. One of the reasons for this growth will likely be due in significant part to the increasing number of people looking to social media to research health decisions. According to a National Research Corporation survey cited in the summary, 41% of nearly 23,000 respondents said that they used social media for this purpose.

The summary discusses critical areas for healthcare organizations to consider concerning social media, which can be applied to most other industries:

• Understand the medium - what is social media, what are the different venues (Facebook, LinkedIn, FourSquare etc.), what is the competition doing, what new media is coming.
• Determine desired uses - promotion of services/sales, recruiting, reputation management, community involvement, education, and so on. 
• Assess risks - privacy, network security, employment, reputation, regulatory, malpractice, and protecting the brand.
• Develop policies and procedures - control company message and regulate employee activity.
• Implement and train and reevaluate - limit the number of employees who can speak for the organization, train employees on legal risks (such as with HR looking up applicant/employee background information on line), determine whether social media plan is producing desired results

Businesses in all industries are "going social," and should be developing a comprehensive plan before doing so. The ECRI summary provides a good starting point for thinking through some of the issues, particularly for those in healthcare.   

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 As the holidays approach, I am reminded of an employment law attorney I used to know who wrote a column about this time of year about holiday parties. He would warn Human Resources (“HR”) professionals to beware of sexual harassment issues as the punch flows and inhibitions dissipate at the annual office get-together.  How things have changed. In this era of Facebook and I-phones, every day is a holiday party in terms of potential liability. It used to be the only photographic evidence of employee carousal was a black and white photocopy of someone’s derriere. Now, smart phones capture everything in full color pixilation and the evidence is posted instantly. We may never know what Herman Cain and his associates were up to in the 1990s, but if it had happened now, you can bet there would be a text, tweet, or digital photo to add fuel to the Yule log fire.

As 2011 draws to a close, most employers have realized they cannot ignore social media. Social media exponentially increases a company’s opportunity for marketing. But HR folks also know that social media exponentially increases the opportunities for employees to do silly things and get in trouble. More than one fast food franchise has had to respond to digital photos posted on line of teen-aged employees bathing in a restaurant sink. Even folks who ought to know better, including an NFL quarterback and a United States Congressman, allegedly sent digital photos of their sugarplums to women who either did not want them, or did not mind sharing them on the Internet.

Based on my conversations with members of corporate HR departments, in the 2012 New Year they will be facing Social Media 2.0 – Rise of the Smart Phones.  Anyone who does not already have a smart phone will probably get one for Hanukkah or Christmas. All employers should already have a social media policy addressing expectations of privacy, anti-harassment, overtime, trade secret protection, Federal Trade Commission (FTC) restrictions, and exceptions for concerted activity and protected speech under the National Labor Relations Act.  Next year, employers will need to consider whether certain categories of employees should be required to keep smart phones locked away during business hours and will also need to respond to the growing demands by employees that they be allowed to conduct confidential company business on their personal I-phone.

Many employment law attorneys and HR managers may be asking Santa for a respite from the technology onslaught, and may need a drink at the holiday party as much as the next employee.

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Have you hired a social media manager?  A social media guru/wizard/ninja/diva?  Each of these job "titles" are increasingly being used by companies to attract individuals who specialize in marketing a company's brand and/or services in social media.  A recent article in the Chicago Tribune and Los Angeles Times highlights just how prevalent these job titles are becoming corporate America.  

As companies struggle to keep up with the rapidly evolving world of social media, they are turning to hiring to hiring social media managers to handle their social media presence.  However, companies should be leery of the “jump first, look second” approach.  In fact, several key questions should be asked when delving into the realm of social media and hiring a new, typically younger employee with responsibility for a company’s social media existence and, therefore, its brand

Qualifications:

• What qualifications are you looking for?  Often companies seek a younger employee who is "tech-savy."  Traditional employment issues notwithstanding (i.e. age discrimination when an "older" employee is not hired/considered for a position), companies must also consider what their social media mission/focus will be.  For example, to the extent a company utilizes social media as a marketing tool, will you want your social media manager to have a background in marketing?  Similarly, to the extent you wish to utilize social media to handle client/customer complaints, will you want your social media manager to have a background in customer relations? Will you hire an external candidate who is perhaps unfamiliar with your company and its mission, or will you hire an internal candidate?

Responsibilities:

• What products/services will the social media manager be responsible for discussing/marketing?
• Will the social media manager have total freedom to explore and execute social media opportunities? 
• What policies will the social media manager be responsible for implementing?  Will the social media manager have responsibility for implementing the company's social media policy to employees and managers as well?

Training/Protocols: 

• What training will be provided to your social media manager?  For example, will the social media manager be trained on what information he/she should or should not consider when examining posts by customers and/or employees? 
• What policies will govern your social media manager’s employment?  Will the social media manager be permitted to “friend” employees/subordinates on social media or establish policies for employees to follow? 
• What safety protocols will be in place?  For example, if your company has a Facebook page, will you social media manager be responsible for maintaining the password and access to same?  How will the company transition its social media presence if and when the social media manager separates from employment? 

While the above list is by no means exhaustive, it demonstrates some of the additional considerations that must be examined when a company wishes to expand into social media.   Companies are often unaware of the need to consider these questions prior to implementing a social media policy or hiring a social media manager.  However, examining these points will help ensure your company’s social media experience flows more smoothly. 

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In a 23-page report, the Acting General Counsel for the National Labor Relations Board summarizes the Board's positions on social media and labor relations. This report is an interesting read and provides insight into one aspect of drafting social media policies - whether the policy will violate an employee's right to take part in protected concerted activity.

The report notes that:

Recent developments in the Office of the General Counsel have presented emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings, the coercive impact of a union’s Facebook and YouTube postings, and the lawfulness of employers’ social media policies and rules. This report discusses these cases, as well as a recent case involving an employer’s policy restricting employee contacts with the media. All of these cases were decided upon a request for advice from a Regional Director.

Social media clearly is an important issue for the Board and this memorandum likely is not its last word on the rules that will shape employer policy concerning the use of this media. The following discussion summarizes the memorandum and its effects on social media policy.

See related articles concerning NLRB activity concerning social media.

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Co-Author:  Joseph J. Lazzarotti

The pervasiveness of social media in professional and everyday communication is a hot button issue (discussed at length here), particularly for private and public employers and organizations.  In fact, many organizations have adopted, or are considering adopting, social media policies for employees and providing training for how employees should interact in cyberspace.  But what should those policies say and what should the training focus on?

To answer those questions, organizations should, among other things, develop and shape their policies, training and discipline concerning social media with an eye toward their particular businesses, regulatory environments, and whether they are in the public or private sectors. A number of recent developments show why this is critical:

·         Two recent Third Circuit opinions handed down on June 13, 2011-- J.S. v. Blue Mountain School District and Layshock v. Hermitage School District (discussed below)-- illustrate the importance of educating employees (teachers and administrators) about student’s First Amendment rights concerning social media and when discipline is appropriate,

·         FTC’s guidelines for endorsement of products or services are important for businesses whose employees are likely to be commenting online about the company’s products and services,

·         The NLRB’s recent actions regarding social media use and the National Labor Relations Act are important for all employers, particularly those in traditionally union-dominated industries,

·         The use of social media in the health care setting is presenting a range of challenges under HIPAA and patient privacy generally.

In addressing the extent to which school officials can regulate student speech, the Third Circuit Court of Appeals has held that school officials violated students’ First Amendment free speech rights by disciplining students for creating, outside of school, “fake” social networking profiles ridiculing their school principals. 

In Blue Mountain School District, 8^th grader J.S., using her home computer, created a MySpace profile in the name of her principal.  The profile was presented as a self-portrayal of a bisexual Alabama middle-school principal named “M-Hoe,” and contained crude and vulgar content. Upon learning of the content, the School District suspended J.S. for 10 days.  The Court held that because J.S. was suspended for speech that caused no substantial disruption in school and that could not reasonably have led school officials to forecast substantial disruption in school, the School District’s actions violated J.S.’s First Amendment free speech rights.  

In Layshock, Justin Layshock, a high school senior, using his grandmother’s computer, also created a MySpace profile in the name of his principal.  The profile included “degrading” content regarding the principal.  Upon learning of the profile, the School District suspended Justin for 10 days.  In analyzing whether a school district may punish a student for expressive conduct that originated outside of the schoolhouse, did not disturb the school environment, and was not related to any school-sponsored event, the Court found the School District was prohibited from reaching beyond the school yard.  

These decisions were based on the Supreme Court’s landmark case on the First Amendment’s application to public schools is Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).  In Tinker, a group of high school students decided to wear black armbands to school to protest the war in Vietnam.  When school officials learned of the plan, they preemptively prohibited students from wearing armbands.  Several students who ignored the prohibition and wore armbands to school were suspended.  Eventually, the students brought suit alleging their First Amendment rights had been violated.  The Supreme Court overruled the district and circuit courts, holding that student expression may not be suppressed unless school officials reasonably conclude that such expression will “materially and substantially" disrupt the work and discipline of the school. 

These cases demonstrate the court's struggle in addressing social media content, especially where there are additional constitutional concerns when a party is a public entity.  For many organizations, First Amendment issues will not be at issue, but there likely will be other considerations.  As each and every industry is impacted by social media, attempting to address it in a one-size-fits-all manner without taking appropriate considerations into account is not only impractical, but in some cases unlawful.  As these developments have shown, efforts to address social media must include an effective industry specific social media policy coupled with training programs to educate employees on the use of social media in all facets of employment and conducting the entity's business. 

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Written by Ron Sgambati

It’s hard to miss the National Labor Relations Board’s recent activity targeting employer decisions based on workers’ use of social media - as it attempts to establish parameters in the work-life balance between social media and rights protected by the National Labor Relations Act. Just when employers understandably may feel compelled to stop basing employment decisions on social media use, a recent Advice Memorandum is giving employers hope.

The Arizona Daily Star had encouraged its reporter to use social media to reach people who might not read the paper and to drive readers to the newspaper’s website. The employee tweeted using his work computer, his company-provided cellphone and his home computer and linked his Twitter account to his Facebook and MySpace pages. Therefore, whenever he tweeted, the same message would be posted on Facebook and MySpace.

In one tweet, the employee criticized the Daily Star’s television staff. The employer warned the employee that his comments were inappropriate, but he continued to post inappropriate tweets, while commenting as a public safety reporter. The tweets included, “What?/?/?/? No overnight homicide? WTF? You’re slacking Tuscon.”

His employer suspended him then terminated his employment. He filed a charge with the NLRB Regional Office claiming he was terminated for engaging in NLRA-protected concerted activity. The Regional Office, as instructed by Office of the General Counsel’s Memorandum dated April 12, 2011, referred the charge to the Division of Advice (“Division”) because the charge involved discipline for engaging in alleged protected concerted activity using social media.
The Division did not find a violation of the NLRA. It instructed the NLRB Regional Office to dismiss the unfair labor practice charge. It determined that after opening a Twitter account and linking it to the Daily Star’s website, the employee engaged in “inappropriate and offensive Twitter postings that did not involve protected concerted activity” and was terminated for engaging in misconduct. This is an important development for employers, perhaps signaling the NLRB’s seemingly aggressive social media stance may not be one-sided.

The victory, however, has been tempered by the NLRB General Counsel’s May 9, 2011, complaint against Hispanics United of Buffalo, a nonprofit organization that provides social services to low-income clients. The complaint alleges the firing of five employees for Facebook postings that criticized working conditions was improper interference with protected concerted activity. It alleged that an employee posted a co-worker’s allegations that employees did not help the company’s clients enough and other employees responded to the post by defending their work and blaming working conditions, including staffing workload issues. The employer fired the five employees after learning of the posts because it found the comments were harassing to the employee who made the original post. A hearing has been scheduled for June 22, 2011.

These latest developments seem to show the NLRB searching for balance between the workplace and social media. The Wall Street Journal reports the Board said it had more than two dozen cases involving worker complaints aired on the social media site Facebook. Stay tuned . . . but in the mean time, employers need to think carefully before acting.
 

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