Document

Report
School of Risk Control Excellence
Employee Use of Social Media
The Impact of the Virtual World on
Disciplining and Firing Employees
Laura Lapidus, Esq.
EPL Risk Control Consulting Director
Disclaimer
The information, examples and suggestions presented in this material
have been developed from sources believed to be reliable, but they
should not be construed as legal or other professional advice. CNA
accepts no responsibility for the accuracy or completeness of this
material and recommends the consultation with competent legal counsel
and/or other professional advisors before applying this material in any
particular factual situations. This material is for illustrative purposes and
is not intended to constitute a contract. Please remember that only the
relevant insurance policy can provide the actual terms, coverages,
amounts, conditions and exclusions for an insured. All products and
services may not be available in all states and may be subject to
change without notice. CNA is a registered trademark of CNA Financial
Corporation. Copyright © 2011 CNA. All rights reserved.
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Social Media – What is it?
 Web 1.0
• Permits only passive use – viewing of content
 Web 2.0
• Content generated by user
• Users can interact with each other
 Social Media
• A subset of Web 2.0 which includes
• Facebook®
• MySpace®
• Linkedin®
• YouTube®
• Twitter®*
• Blogs
• Texting
*All of the trademarks listed above are the property of their respective owners.
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Some Employment Risks of Social Media/Networking
 Employee misuse
• discrimination/harassment/retaliation
• violation of credit and other laws
• disclosure of confidential information
• damage to a company’s reputation
• defamation
 Employer monitoring
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Risk of Discrimination/Harassment/Retaliation Allegations
 Any conduct that harms employees, the working relationship or
the working environment may create a hostile work
environment.
• Text messages and “tweets”
• Posts/pictures on a Web site such as Facebook® or Myspace®
 Negative posts can be viewed as retaliatory
• a negative recommendation could raise retaliation issues
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Risk of Wrongful Termination
 Some states prohibit taking any disciplinary action against an
employee for engaging in lawful activity outside of work
 Whistleblower complaints of potentially illegal activity are protected
under both federal and state laws
 Inaccurate and/or misleading information
• Ex. – Shirley Sherrod and the Dep’t of Agriculture
 Recommendations of employees
• If you recommend an employee online, it may be difficult to later
defend poor performance/termination
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Monitoring Employees’ Social Media Usage
 An employer can read posts on a public site
• No expectation of privacy
 An employer can’t gain access to a password protected site through
coercion or other illicit means
- May violate the Federal Stored Communications Act
 An employer can’t prohibit employees from discussing wages and
working conditions
• Under the NLRA, employees have a federally protected right to
discuss wages and working conditions whether or not they are
unionized
 Beware of state privacy laws
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Managing Social Media Risks
 Every company needs policies to address social media
• Current email and/or internet policies will suffice only if they
address social media
• Either update them or create a separate social media policy
• Blocking social media is not the solution, although it may be part
of the solution
• You still need policies to address employees’ conduct on their
non-company computers/smart phones
 For a sample policy outline http://www.workplaceprivacyreport.com/uploads/file/ELECTRONIC%
20COMMUNICATIONS(1).pdf
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Last but not least – TRAIN!
 Make sure you train your employees regarding
• risks of social media
• company’s policies regarding social media
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