Investigating and Forgetting on the Web: Issues in the Internet and Employment and Labour Law

These are notes are from a panel presentation organized by the ABA Section on Labor and Employment Law at the American Bar Association 2011 conference in Toronto on Sunday, August 7, 2011. Panelists included Douglas E. Dexter, Farella Braun & Martell LLP, San Francisco; Roy L. Heenan, Heenan Blaikie LLP, Montreal; Mauricio Paez, Jones Day, New York; and Lauren Schwartzreich, Outten & Golden LLP, New York. The moderator was Cynthia E. Nance, Professor of Law, University of Arkansas, Fayetteville, Arkansas. Note: these are my selected notes from this session; any inaccuracies or omissions are my own. This is the final instalment of my notes from ABA 2011. I welcome your comments and follow-up thoughts! 

Lauren Schwartzreich – Employee access to social media

Information on social networking sites (people’s individual profiles) may not be accurate: could have been hacked, friends could be playing jokes, could be tongue-in-cheek. So, take care not to take everything at face value when looking at profiles of potential employees. There is a great potential for discrimination claims, such as claims under Americans With Disabilities Act and others. Not all information might be taken at face value.

Monitoring of employees’ Internet use:

• What are the circumstances under which monitoring was put into place? Is it retaliation? Pretext for discrimination?
• Looking at the content of Internet use and communication: Was it protected speech under the National Labor Relations Act? Was it employee/lawyer communication and therefore protected?
• With respect to technology used for monitoring: did the employer surreptitiously use sign-on information to social networking site? Did the employer coerce a fellow staff member to reveal password?

With social media use in an employment setting, there are potential claims on both sides.

Douglas Dexter – Employer Response to Social Media and the Workplace

Social media is definitely a concern that employers have. Many HR departments are not using the Internet at all to research candidates’ backgrounds. As the technology develops for the employees for maintaining Facebook sites and can detect who is looking at their sites, there will be more and more litigation. Individuals who are being searched are not currently generally cognizant that of being searched.

Each of us is capable of publishing information “on a gargantuan scale” and this is often done without a lot of thought. Those of us with Facebook pages, are on Twitter, have LinkedIn pages: can you tell who are your friends and when they joined? Are people from your workplace following you? A lot of people forget who they are publishing to. From the employers’ perspective, this is the most troubling reason to monitor what is happening. People make remarks in a very public way about the workplace, co-workers and supervisors, competitors and products. If there is a critique of your companies’ products, employees feel it is their obligation and right to respond resulting in thousands of “spokespeople” on the Internet. That is where we are getting our consumer information. Do we want our employees to be in that role?

• What about our customers? If someone happens to have a bad experience with a call centre, they complain to their Facebook page to untold number of followers.
• Are employees having conversations on the Internet that would have previously taken place in the lunchroom?
• What about confidential business information – someone tweeting “you wouldn’t believe what we are going to do next!”

Part of the problem is the instantaneousness of it, they are not thinking, they are just doing. Employers are investigating.

What kind of postings have led to employment actions?

• “drunken pirate” photo prevented a teaching candidate from getting a job
• explicit photos have led to suspension
• posts disparaging the boss (with the boss as a friend!)

Things get complicated because sites are both personal and professional. There is an expectation in many jobs that people should be involved in social media. Lines start to become blurred.

A social media policy should provide guidelines for employees who use social media for work purposes:

• requiring management review and approval before launching any internet initiative
• how much review of each posting?
• even this most fundamental safety net is controversial
• before any images of company facilities, events or employees
• that would disclose confidential information of business, customers, co-workers
• respectful of customers, employer, co-workers
• put the company in the best light

Policy for personal use should include:

• use guidelines
• engagement should occur through personal account
• should not appear to represent the Employer
• should not use Employer’s trademarks
• should make it clear the views are yours alone
• should not disparage business affiliates, competitors or customers
• should not contain confidential information about facilities, business plans, customers
• should not reproduce company material without permission
• should comply company with general company policies
• with respect to images: any photos in Employer facilities may only be used if approved; ask permission from colleagues before including them
• with respect to “Friends”: conduct yourself with co-workers as you would in the office. What about prohibiting friending of subordinates? When two people are equals and one gets promoted, should that person run out and un-friend?
• additional provisions: For publicly traded companies: “Please be aware that we may request that you temporarily confine your website or weblog commentary to topics unrelated to the company…if we believe this is necessary or advisable to ensure compliance with securities regulations or other laws.” (there may be information black-out periods)
• consult with HR if any questions
• not intended to preclude employees from exercising their rights

Mauricio Paez – Social media and labor relations

Don’t make a virtue out of being a social media luddite. If a case comes across your desk, you want to know if you have a claim under the NLRA.

You need to be able to:

• explain it to a board agent
• explain it to an administrative law judge
• explain this in a court of appeals

What types of issues has the National Labor Relations Board (NLRB) addressed?

• rules governing the use of social media
• where you have a unionized workforce, the employer has to negotiate with the union before putting a policy related to social media in place
• whether violates the National Labor Relations Act
• social media policy that could result in discipline will become part of the bargaining
• if you don’t go to the union first, you could have a claim against you
• is the policy compliant under the NLRA?
• need decisions under the NLRA to interpret the law

Clarifications:

• this applies to any private sector employer, not just unionized
• “collective” in this case could be one employee speaking to a group or even just one person on social media – considered “concerted activity”

Roy Heenan – Social media and employment law in Canada

Canada has a different direction, to follow the OECD guidelines on privacy protection. If you follow the guidelines and certain principles, you can get data collected in Europe transferred over to your company.

We have a privacy act which gives individual access to information, fairness on the behalf of government, and a Privacy Commissioner appointed by the government. She is very active in policing the privacy area. She is assisted by PIPEDA (Personal Information Protection and Electronic Documents Act ) which is based largely on the OECD guidelines. It limits use, disclosure and retention of information, and companies have to have safeguards in data collection. This is the Federal government, but some provinces have similar legislation and rules.

There is a list of protections and also a list of expectations visited on employers. Has the employer a proper policy? Is it communicated to the employees? If there hasn’t been a policy or carefully communicated, disciplined employees may be reinstated into their jobs.

According to the Privacy Commissioner on privacy and social networking:

• it is a different animal from email; employers should and must produce a whole policy to deal with social media and it should be communicated to employees.
• Privacy communication to employees
• anything posted on sites may be accessed by current and potential employers, competitors, etc. Anything posted to social networking sites may be used by unintended audiences.
• employees should be aware of untended disclosure
• disclosure could be damaging to employer.

May 2011 – 2010 Annual Report from Privacy Commissioner

• online tracking and cloud computing
• shifting expectations of privacy – people want to communicate but still expect privacy, which is contradictory
• companies must develop standards of data collection since will still be accountable

Vancouver riots (and tweets by Brock Anton)

• a lot of shaming came out of this; friends were outing friends on Facebook
• public told companies that if they kept these people on as employees, they would boycott the stores
• the consequence has been dramatic
• the next day the cleanup was done by getting volunteers through social media

Need to consider to what extend is there really an expectation of privacy? In Canada we are going through this reflection; with technology there are ways of having surveillance, and there is a danger of collecting too much private information as a result.

Q&A

Q: Do you think there is now an ethical obligation to be informed about social media? Also, how to obtain and preserve social media evidence?

Schwartzreich: If you are involved in litigation, it is becoming increasingly important. Content on social media sites is most likely going to be relevant. Trend of cases has indicated a broader, early trigger to when the need to preserve evidence arises. You are going to be responsible for clients’ social media, what is discoverable content. You have to figure out how you are going to preserve it.

Facebook tool: download your information tool [see screen shots below]. You can download a good portion of your clients’ Facebook content, but some content is excluded. You need to figure out what is going to be relevant.

(click on images to enlarge)

Twitter: “Tweetake” program for backing up tweets.

Free tools may, however, be limited in scope. Courts will become frequently frustrated with counsel if they don’t look for this content early. You don’t want courts to require turning over of clients’ login information during discovery.

Also, how are you going to get Internet information admitted at trial? Courts are not that forgiving at authenticating information from the Internet.

Paez: 12 Delaware Law Review 2011 article – August 2nd [see: Ethical Risks Arising From Lawyers’ Use of (and Refusal to Use) Social Media by Margaret M. DiBianca, p. 179 (pdf)] cited New York Law Journal – 60% of domestic relations lawyers collect information through the Internet. Varies by area of law. Also, to make an argument you have to understand how a Facebook page works. Your 14 year old who has 1000 friends is going to be in the workforce sooner rather than later, you better understand this.

Heenan: www.accessprivacy.com – 30 page paper from May 2011 – not just an obligation for lawyers, but a potential opportunity.

Q (from counsel to large corporation): He does not understand why social media is not blocked inside organizations, and just unblock those who need to do marketing research.

Nance: It is your job to promote the entity and it is not just those in PR e.g. if she is on a panel at the ABA conference, she wants to tweet to drive people to her organization.

Dexter: There was a lot of effort put into blocking sites early on. As a practical matter, you no longer need your computer to access social networking sites, so this is no longer going to work. Wasting time in the workplace as a selective enforcement issue is almost insurmountable. The technology is way ahead.

Paez: You are never going to be able to stop employees from posting Facebook updates. Don’t put a policy in place you cannot enforce.

Comment from the audience: If you see posts from a juror, you have an ethical obligation to report it to the court.