Social Media Management News

Social Media Management News :: Sept | Oct 2010 Employment

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Employment

Compensation for Blackberry "OverTime?"

A group of Chicago police officers are suing the city for overtime pay and violations of the Fair Labor Standards Act for the use of a Blackberry on police business after shift-time. The class action suit claims the Police Department expected officers to be on call 24 hours a day via the Blackberry so they could access work-related messages to conduct department business.

They also claim the City failed to keep appropriate records of the time employees spent on these devices. They are suing for three years of unpaid overtime.

The most fascinating issue at hand may come to be that by issuing the device the employer "permitted" or encouraged work outside normal employee working hours and that this time is therefore compensatory for non-exempt employees.

The suit highlights another potential risk for employers: the fact that such devices create a record of work means it could be difficult for an employer to take the position that they were unaware of work being performed in off-duty hours.

This same issue crops up in expecting non-exempt employees to be responding to posts on social media sites after work hours. 

We'll keep you appraised of the outcome.

[ Resources for you ]

Allen V City of Chicago Compliant

| Download Allen V City of Chicago Complaint U.S. District Court (PDF) |

To Monitor or Not to Monitor, That is the Question

…And it seems the hottest social media potato for employers these days.

Since this is an issue that comes up frequently in our training sessions, we thought it worth highlighting the question again.

A Federal Court in California made a ruling last May that accessing an employee social media posts or messages on Facebook or MySpace that are intended to be private will run afoul of the Stored Communications Act.

Although the case was not specifically about whether or not employers have broad freedom to monitor employees' social media sites, Crispin v. Christian Audigier, Inc. is the first case that has squarely addressed whether social networking meets the test to be included in protected information under the Act.  The answer is yes. Your employees' privacy settings have a direct impact on whether their postings will be interpreted as protected information.

The decision is technical indeed, drawing distinctions about how and where the information is stored. But in light of it, legal pundits are advising employers to 1) get employee consent to monitor off-duty hours activity; 2) set expectations of privacy; 3) be very wary of requesting to and accessing an employee's social network account; 4) be aware of the unclear legal environment of using information gained from a third party site.

Bottom line - to protect yourself and your employee's privacy, consult a digitally savvy attorney about navigating the social media monitoring landscape and be sure to train managers about appropriate social media practices.

Facebook Places - Does "Checking In" Compromise Your Employee's Privacy or Safety?

We've been advising clients for a while now to consider the workplace safety, privacy and confidentiality implications of location-aware applications and location social media "check-in" behaviors that broadcast a user's current physical location.

Until a few weeks ago, the universe of people using these services was relatively small - 3 million or so. But with the launch of Facebook Places to its 500 million members, that landscape has now shifted dramatically and immediately.

The Places application allows individual's to "check in" at a physical location which then broadcasts that location on Facebook and other social networks.

Facebook sets as a default that user's location broadcasts to "friends only." But, a user of Places may publicly "check in" any of his or her friends at a location without that friend knowing or approving it. Each Facebook user must manually adjust their settings to prevent friends from "checking them in" at physical locations.

If your employees' location is sensitive while on the job, we suggest a thorough review of the features of Facebook Places as well as other location-based social platforms such as Foursquare or Gowilla. These applications are growing quickly.

Assess the potential risks for your employees, customers or your organization. Consider too how broadcasting a location may reveal information that may be unwise for a manager or the organization to posses.

At the very least, advising employees of how to adjust their privacy settings to prohibit unintended "check-ins" by friends may be good protection for both of you while they are on the job. See the resource links below for how to control Places broadcasts.

More to come.

[ Resources for you ]

Facebook Places

| Visit Facebook's Places Page |

Facebook's Places Blog Post: Who, What, When, and Now...Where

| Read Facebook's Who, What, When, and Now...Where |

Social Media Management News :: July | Aug 2010 Employment

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Employment

50% of Millennials Ignore Company Social Media Policies

Half-way into Cisco's report on network security, that little statistic pops up. And, 27% of these Millenials say they go so far as to change settings on corporate devices to access prohibited applications.

Cisco notes a similar study by Accenture found that 45% of employed Gen Ys use social sites at work.

Games in social networks are hugely popular, so unsurprisingly, Cisco reports a small percentage (4-7%) of employees spend upwards to 68 minutes a day playing games such as FarmVille, Mafia Wars and Cafe World on Facebook.

Goofing off at work is clearly a performance issue. But before rushing to the conclusion that this is all a monumental loss of productivity, it's critical to consider that social networks are key tools in a business environment increasingly dependent upon social and collaborative networks.

Shutting down social networks at the office may be cutting the organization and your people off from vital business activities.

Games are not all bad either. Playing games for brief amounts of time can be valuable brain resters and stimulators. They can help employees refocus on tasks at hand that may, in the end, make them more productive.

FarmVille may not be your corporate game of choice, but think about the benefits of providing brain-healthy games for your employees and how they may even be leveraged to provide training or encourage collaboration within teams. Gaming for business is the wave of the future.

In separate studies Gen Ys report that boredom often drives them to games, shopping or tapping into their social nets while at work.

Have you taken the step of getting insight into how your employees are using social media, when and why? You could uncover valuable insights that can be applied to your organization, or issues that your policies don't cover.

Cisco's report suggests companies may be doing a poor job in training employees on their social media policy.  It is needed for both productivity and security. Just because a policy exists doesn't mean employees understand why it impacts them.  A good training program also has the benefit of providing feedback and intelligence on employee's needs.

Only 1 in 5 companies in Cisco's study have policies in place for the use of social networking tools, and only 1 in 7 have formal processes for adopting social media for business.

The report summarized various enterprise risks associated with social media.

[ Resources for you ]

Cisco 2010 Midyear Security Report: The Impact of Global Security Threats and Trends in the Enterprise

| Download Cisco's 2010 Midyear Security Report |

Video: Best Buy: Company as Wiki

| View Best Buy's Company as Wiki |

Book: Total Engagement

| See book description, Total Engagement: Using Games and Virtual Worlds to Change the Way People Work and Businesses Compete |

Book: Learning in 3D: Adding a New Dimension to Enterprise Learning and Collaboration

| View book description: Learning in 3D: Adding a New Dimension to Enterprise Learning and Collaboration |

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Employment Short:
Cotton On was told by Australian regulators that as part of a Fair Work settlement in failing to pay workers for off-hours training sessions it must publish an apology to staff on its offical Facebook page.

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Social Media Not Yet Ruled Out for Genetic Discrimination Risk

The EEOC is a couple of months behind in publishing its final rules regarding social media and GINA - the Genetic Information Non-discrimination Act. The headache for employers is remaining in limbo about whether finding medical information while checking out employee or candidate personal web and social media sites risks violating GINA Title II, in effect since last November.

GINA makes merely acquiring genetic information illegal.

For example, if an employer found an employee posting about participating in the "Race for the Cure" to honor of her mother who has breast cancer or caring for his father who has Multiple Sclorsis, simply having acquired that information could be a violation of GINA. "Genetic information" in the statute is broadly defined and includes information on relatives or a dependent from the first to the forth degree.

In a space where sharing (over sharing?) is standard MO, social media can be an employer's mine field.

There is an exception in GINA for "inadvertent acquisition," but it is unlikely a plea of "we didn't think we'd see that" will protect an employer. That argument might have a chance with regulotors in the case of a supervisor who is connected to a subordinate and happens to see such information one day in her Facebook feed.

Social media may wind up being excluded from possible violations by the EEOC under a "commercially and publicly available information" exemption, but that remains to be seen.

Until final rules are released, we encourage employers to be diligent about having relevant social media policies for recruiters and supervisors about trolling social media profiles, as well as carefully documenting how social media was used in employment actions or recruitment. If using outsourced recruiters, be sure they are aware of risks associated with disclosing such information to you.

Final guidelines were expected in May, but have been delayed to the Fall to allow new board members to reexamine public comments on the regulations. GINA applies to private and governmental employers with 15 employees or more.

[ Resources for you ]

Article GINA and Social Media by The Delaware Employment Law Blog

| Read GINA and Social Media article |

Social Media Management News :: June 2010 Employment

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Employment

LinkedIn connections are at the center of a unique non-compete lawsuit.

Technology staffing company, TEKSystems, contends that former employees violated a non-compete agreement by communicating with TEKSystems contract employees and connecting with them on the social network, LinkedIn.

TEKSystems' complaint cites a specific example of a LinkedIn exchange by one of the former employees.  It isn't clear how the company got their hands on the communication, which in itself could impact the outcome.

Whichever way this one goes, the lawsuit raises some fascinating management questions, especially since the express purpose of LinkedIn is to connect people for business purposes.

Questions that come to mind:

• Is a mere connection a violation of restrictive covenants or non-compete agreements? 
• Are there employer limitations for monitoring social networks for non-compete activities? 
• Can social network updates about current activities and whereabouts be considered a recruitment solicitation?
• Is there a different standard for social media communication versus other forms of communication? 

It is important to review and update your policies and non-disclosure / non-compete provisions for appropriate social media guidelines.

[ Resources for you ]

Employment Law Alert from Nixon Peabody

| Read lawsuit details and recommendations at Nixon Peabody |

News Update:  Review of Employee Text Messages on Employer Pager

The U.S Supreme Court unanimously sided with the City of Ontario saying its review of personal text messages sent from an employer-owned pager was not an infringement on employee's 4th Amendment privacy rights. 

The court found the employer investigation was reasonable.  The City of Ontario reviewed messages sent only during business hours and for the purpose of determining an appropriate service plan for employee pagers.

Employers should take heed, however. 

The court's decision was deliberately narrow.  It did not resolve a key issue in the case -  that of employee expectation of privacy.   It specifically stated that an employee's expectation of privacy would be shaped by workplace norms and changes in information transmission technologies and workplace practices. 

The opinion emphasized that a clear computer and internet use policy - and it being clearly communicated to employees - would be factors in courts analyzing an employee's 4th Amendment rights in investigations of employee communications.

Be sure both your policies - and your compliance training is up-to-date.

Perhaps the most intriguing of the court statements, and a harbinger of issues to come: 

"Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or nec­essary instruments for self-expression, even self­ identification. That might strengthen the case for an expectation of privacy. "

[ Resources for you ]

Summary of case from Carlton DiSante & Freudenberger

| Read case summary at Carlton DiSante and Freudenberger |

Supreme Court Opinion

| Download Supreme Court Opinion Quon vs City of Ontario (PDF) |

Social Media Management News :: May 2010 Employment

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Employment

 
Unvarnished is a new and controversial business-based "review" site - a Yelp for people basically - in which its members publicly, but anonymously, weigh in on their peers, colleagues, bosses, customers, or vendors. 

Individuals may "claim" reviews about themselves but may not edit or delete them.  It might be wise to keep an eye on this - and a good time to double-check your social media management best practices.

Unvarnished works on top of Facebook -  you must have an active Facebook account, and be invited by a Facebook friend.  As a "reviewer," you may rate someone on 10 characteristics in addition to highlighting their strengths or weaknesses.  There are 400,000 professional profiles of Silicon Valleyites the site owners preloaded to kick off the network.

The Unvarnished controversy lies in the anonymity of the reviews and that anyone may create a profile about you. The identity of the reviewer is never available, however other members may up the credibility of the reviewer by rating their reviews. 

A few suggested things to consider weaving into your organizational social media practices:

• If the company recruiters use the site for candidate screening or recruitment, it is wise to continue monitoring the site for reports of inappropriate behavior.  Lawyers are warning that once used for recruitment it may trigger a "should have known" employer obligation to investigate workplace behaviors.
• Advise managers of appropriate use and legal exposure of public recommendations for subordinates.
• If you haven't undertaken some employee training in appropriate business use of social media, now is better than later.  Advise them that the anonymous nature of these sites does not negate their confidentiality responsibilities and that they should consider any unintended consequences or disclosures.
• Get compensation guidance on mandating any off-hours monitoring.
• If you are a government agency or are subject to OFCCP, get guidance on using social media as a recruitment tool.

[ Resources for you ]

Unvarnished Website

| Visit the Unvarnished website |

US Supreme Court will rule on privacy of text messages on employer supplied equipment.

On the heels of a ruling on email privacy by the New Jersey Supreme Court, the U. S. Supreme Court court will rule on the expectation of privacy of personal text messages sent on an employer-issued pager.

Depending on the court's decision, the pending case of City of Ontario v. Quon could serve to negate or more narrowly define written policies that advise employees of no expectation of privacy on employer supplied equipment. 

Although the City of Ontario, CA has a written policy in place, and it was signed by the police SWAT team employee in question, a federal appeals court ruled a review of all the employee's personal messages by the City was overly intrusive.

Watch this one.  Even though this is a case involving the public-sector, it will have implications for the private sector as well.  There is general recognition that private sector employers have wide latitude to monitor electronic communications of employees when advance notice is provided, but over time courts have been finding exceptions to that general rule.

[ Resources for you ]

Summary Questions Presented in City of Ontario v Quon

| Get CITY OF ONTARIO V. QUON Summary (PDF) |

Updated Social Networking Employer Legal Guide Available.

Reed Smith has released a second edition of its excellent Network Interference: A Legal Guide to the Commercial Risks and Rewards of the Social Media Phenomenon.  We highly recommend this document to inform your policies and practices. 

If you haven't downloaded it, use the link below for the latest edition.

[ Resources for you ]

The Reed Smith Legal Guide to Social Media

| Network Interference: A Legal Guide to the Commercial Risks and Rewards of the Social Media Phenomenon |

Social Media Management News :: April 2010

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Employment

Having social media policies is a must, but it's equally vital to be distilling them through to management practices. Actions by your managers could very well neutralize your carefully constructed policies or employee handbook if litigation strikes. Adding a social media policy briefing to your other compliance training is essential to risk mitigation.

The majority of recent social media workplace litigation has focused around management conduct. Courts are weighing how managers interact with social media issues in - and out of - the workplace. 

A particularly prickly area for managers is understanding the potential employee social media privacy issues. Employee “expectation of privacy” can certainly be set through a clear social media policy, but it's important managers be aware when and how accessing employee postings could be risky business for the organization. Clear manager boundaries is as important as employee policies.

Because employee posts may prove problematic, many employers respond to social media in the workplace with aggressive policies on employee social network activity. However, they might be surprised to learn that off-duty conduct in social media may be protected even for at-will employees.

To help you consider and to mitigate risk, here are two helpful resources:

[ Resources for you ]

Attorney firm Morrison and Foerster recently issued an in-depth employer alert. It covers important social media issues for employers, including privacy, potential implications of the Stored Communication Act and Wrongful Termination. "MoFo", as they call themselves, also make some policy recommendations here. A must- get:

| Download the Morrison & Foerster Employer Alert. (PDF) |

Attorney firm Reed Smith has released an excellent paper, Social Media Risks and Rewards, highlighting various social media risks by functional area – from marketing to product liability. Definitely a wise read:

| Download Reed Smith's Social Media Risks and Rewards |