In a very short period of time Facebook, Twitter, You-Tube and other forms of social media/ networks have grown from obscure little-known websites to hugely popular super-sites with the emergence of Web 2.0. What was once a one-way communication portal has been transformed into an interactive present day real-time global building medium. Today with smart phones, I-pads and other mobile devices, millions of people stay in touch in a host of different ways. Users tag and share comments, text messages, videos, photos and audio messages in nano-seconds. Additionally, users now may find the solution to a problem in numerous ways through the use of such networking sites, which are available, in most cases, to the general public.

However, such global sharing brings along with it both rewards and a multitude of risks for employers, large and small.
 
Revealing of Trade Secrets, Confidential or Other Proprietary Information
 
Employees unknowingly or intentionally may disclose in a social networking site or blog information that is confidential, proprietary or forms the basics of a trade secret such as pricing, customers, etc. Employers need to make employees aware of what cannot be conveyed outside the workplace.
 
Discrimination or Harassment Claims
 
Employers could face liability when employees use social media sites, uncontrolled while at the workplace, to forward pornography, engage in stalking, make discriminatory statements, racial or ethnic slurs, sexual jokes or innuendos directed to co-workers.
 
Defamation Claims
 
Employers could be held liable for false information by way of using social networking sites to spread rumors, offensive statements, or false accusations about co-workers and managers.
 
Intrusion upon Seclusion
 
Employees using social media sites may intentionally intrude upon a co-worker's privacy in a highly offensive way, where the co-worker had a reasonable expectation that such personal matters would remain private.
 
When an employer accesses an employee's Facebook or MySpace postings, as shown by the New York case of Romano v. Steelcase, (NY Supreme Court of Suffolk County), an employee has no reasonable expectation of privacy, even with privacy settings, as the employee posting on such accounts is actually posting it for public viewing, albeit with a limited public audience.
 
 
Protected Concerted Activity and Surveillance
 
The Board has ruled in Guard Publishing Company, d/b/a The Register-Guard, 351 NLRB 1110 (2007) that the Company did not violate the NLRA §8(a)(1) with its policy that prohibited use of its e-mail system for any "non-job-related solicitations". However, in NLRB member Liebman's descent she opined: "In 2007, one can not reasonably contend, as the majority does, that an e-mil system is a piece of communications equipment to be treated just as the law treats bulletin boards, telephones, and pieces of scrap paper…….National Labor Policy must be responsive to the enormous technological changes that are taking place in our society."
 
On November 2, 2010, the National Labor Relations Board (NLRB) issued a press release detailing a complaint issued by its Hartford Regional Office concerning Dawnmarie Souza, a female employee working for American Medical Response (AMR), an ambulance company, who was allegedly wrongfully terminated over negative remarks that she posted about her supervisor on her personal Facebook page. Involvement by the NLRB in considering Facebook postings, as another medium where protected concerted activity can occur, is a harbinger of a new NLRB focus that bears close monitoring. The Board will hear Souza’s case in January 25, 2011, and utilize the framework created by prior cases as a backdrop for its decision.
 
According to the Board, the issue occurred after Frank Filardo, Souza’s supervisor, asked her to write an investigative incident report about a customer who complained about her. Souza requested and was denied representation from her union, Teamsters Local 443. After Souza went home, she posted a negative comment about “Frank” on her personal Facebook page. Other co-workers responded to her comments. In December, 2009, Souza was terminated for the Facebook postings that violated AMR’s internet policies.
 
After an investigation, the NLRB concluded that AMR’s blogging and internet policies contained unlawful provisions that interfered with an employee’s Section 8(a)(1) and Section 7 rights under the NLRA, as amended. Accordingly, the NLRB concluded that AMR was in violation of the law twice—once when it denied Souza a union representative during an investigatory review, and again when it interfered with Souza’s Section 7 Protected Concerted Activity rights, wherein it is unlawful to bar an employee from communicating with co-workers about wages, hours or terms and conditions of employment.
 
As described in Souza’s Complaint, the AMR policy prohibited employees from making disparaging remarks when discussing the company or supervisors and from depicting the company “in any way” over the Internet without company permission. The NLRB also alleged that the employer illegally fired Souza pursuant to that policy for posting negative remarks about a supervisor on Facebook, which the NLRB said drew supportive remarks from her co-workers.
 
In this case, Souza sent e-mails complaining about “Frank” and other employees joined in that discussion. According to the NLRB complaint, AMR’s policy prohibited employees from discussing the company or its supervisors on the Internet without company permission. Thus, the policy was a violation of Section 8(a)(1), which prohibits an employer from unlawful surveillance of an employee concerning his/her rights to engage or not engage in activities protected under the NLRA, as amended, and specifically about her Section 7 rights. Keep in mind that an employer monitoring an employee’s e-mail, even though accessed through company-issued equipment, may subject the employer to “knowledge of an employee’s protected concerted activity; such as, the signing of union authorization cards, employee participation in union organizing activities or other such protected rights.
 
About the same time on December 4, 2009, the NLRB trend of scrutinizing Social Media Policies for their “chilling effect” on Protected Concerted Activity was further reinforced when the NLRB’s General Counsel issued an Advice Memorandum on Sears Holdings (Roebucks) Social Media Policy (Case 18-CA-19081). In this review, the NLRB reviewed the circumstances of the employer’s social media policy from the standpoint of whether or not it might violate an employee’s Section 8(a)(1) and Section 7 rights, and thereby have a “chilling effect” on employee participation in protected concerted activities.
 
According to the NLRB,
 
“An employer may violate Section 8(a)(1) through the mere maintenance of certain work rules even in the absence of enforcement. The appropriate inquiry for such a case is whether the rule in question “would reasonably tend to chill employees in the exercise of their Section 7 rights.” (Lafayette Park Hotel, 326 NLRB 824, 825 (1998)…
 
The Board refined this standard in Lutheran Heritage Village – Livonia (343 NLRB 646 (2004) by articulating a two-step inquiry for determining whether the maintenance of a rule violates Section 8(a)(1). First, the rule is clearly unlawful if it explicitly restricts Section 7 protected activities. If the rule does not explicitly restrict protected activities, it will only violate Section 8(a)(1) upon a showing that:
 
(1)   Employees would reasonably construe the language to prohibit Section 7
        activity; or
 
(2)   The rule was promulgated in response to union activity; or the rule has been
        applied to restrict the exercise of Section 7 rights.
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The Board has articulated a two-step inquiry to determine if an employer rule violates Section 7, Protected Concerted Activity, rights, by showing that: (1) Employees would reasonably construe the language to prohibit Section 7 activity; or (2) The rule was promulgated in response to union activity, or the rule has been applied to restrict the exercise of Section 7 rights.

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The Board further held that its review of Social Media policies must begin with “a reasonable reading of the rule.” Further, the Board held in Lutheran Heritage that phrases could not be taken out of context or read in isolation to determine whether they violate employee Section 7 rights.
 
For example, the Board stated:
 
“…a rule proscribing “negative conversations” about managers that was contained in a list of policies regarding working conditions, with no further clarification or examples, was unlawful because of its potential chilling effect on protected activity. (Claremont Resort and Spa, 344 NLRB 832, 836 (2005)
 
The Board held that, in the absence of further guidance from the employer, an employee could reasonably construe the rule to limit his or her Section 7 right to engage in protected protest. On the other hand, the Board found that a rule forbidding “statements which are slanderous or detrimental to the company” which appeared on a list of prohibited conduct including “sexual or racial harassment” and “sabotage” could not be reasonably understood to restrict Section 7 activity. Tradesmen International, 338 NLRB 460, 462 (2002).
 
In that context, the Board found that “employees would not reasonably believe that the … rule applies to statements protected by the Act,” because it was listed alongside examples of egregious misconduct. (See Tradesman International)
 
In Palms Hotel and Casino, 344 NLRB 351, 355–56 (2005), the Board concluded that it would not find a social media policy in violation of the NLRA, as amended, just because the “rule could be interpreted that way.” The Board further held that it was not trying to engage in speculation merely to “condemn as unlawful a facially neutral work rule that is not aimed at Section 7 activity and was neither adopted in response to such activity nor enforced against it,”
 
Concerning the effect of the employer's application of its social media policy as constituting unlawful employer surveillance, the Board could find unlawful surveillance, for example, where a supervisor coerces other employees to pass along a co-worker's password to monitor the friends e-mails to spy on their concerted activities after the commencement of the Union organizing activity. (See The Hertz Corp., 316 NLRB 672) 1995, where the Board held that the employer engaged in unlawful surveillance when it allowed it's supervisors to begin to sit in the employee break room only when certain specific employees, who supported the Union, were in the break room.
 
Therefore, during a Union organizing campaign, when an employer informs employees that it is going to commence lawfully accessing their Facebook pages this maybe held that the employer is creating the "impression of surveillance" that it will be doing this monitoring on a regular basis.
 
Right of Privacy Claim
 
The most recent cases on employer or defendant access to the social media sites that individuals use are the New York Case of Romano v. Steelcase, Inc. (Supreme Court, Suffolk County, Sept. 21, 2010) and EEOC v. Simply Storage Management, LLC et al (So. Dist.IN, Indpls Div., May 11, 2010).   In the Romano case a trial court found that Kathleen Romano ("Romano") had no reasonable expectation of privacy in what she posted to her Facebook and MySpace pages, irrespective of the privacy settings she used to restrict access to such postings.
 
Romano alleged permanent physical injuries, while also including in the public postings on her Facebook and MySpace pages physical "activities and enjoyments of life," which demonstrated content inconsistent to her claims that she had sustained permanent physical injuries.
 
Defendant, Steelcase sought access to the private portions of these social media pages to gain additional contradictory proof that she was not permanently injured as alleged in her complaint.
 
Even though Romano had used privacy settings to restrict access to only her "friends" she was sharing this information with her friends. The Supreme Court of Suffolk County found that Romano could not shield relevant information from disclosure merely because she had adopted privacy settings to restrict access.
 
The Court, of interest to employers, states that "although there is no New York case law directly addressing the issues raised by Steelcases's application for access to Romano's current and historical Facebook and MySpace pages and accounts (including all deleted pages and related information), there are no instructive cases from other jurisdictions and then cited the case of Ledbetter v. Wal-Mart Stores, Inc., (06-cv-01958-WYD-MJW, D. Colo. Apr. 21, 2009). In the Wal-Mart case, Wal-Mart sought through a subpoena production of the content of Ledbetter's Social networking sites (i.e. face book, MySpace & Meetup.com). Apparently the information sought contained on the social media sites was proof that contradicted the allegations regarding the effort of their injuries on their daily lives. 
 
When the networking sites refused to provide information, absent Ledbetter's consent or request, Wal-Mart moved to compel production and Ledbetter moved for a protective order. (Ledbetter (and another unnamed Plaintiff claimed physical and psychological injuries as a result of the accident which gave rise to the lawsuit. The court denied the motion for a protective order and held that the information sought by the subpoena was "reasonably calculated" to lead to the discovery of admissible evidence and was relevant to the issues in the case.
 
In New York (as in a number of states) there is no common-law right of privacy. The Court held that Romano's allegations regarding access to her restricted Facebook and MySpace accounts (pages) would violate her right to privacy are without merit and that any such concerns are outweighed by Steelcase's need for information.
______________________________________________________________________________

In New York (as in a number of states) there is no common-law right of privacy. The Court held that Romano's allegations regarding access to her restricted Facebook and MySpace accounts (pages) would violate her right to privacy are without merit and that any such concerns are outweighed by Steelcase's need for information.
______________________________________________________________________________
 
Constitutional Considerations
 
The Court stated:
 
"The Fourth Amendment's right to privacy protects people, not places (See Katz v. United States, 389 U.S.347 (1967) ("What a person knowingly exposes to the public, even in his own home or office, is not subject of Fourth Amendment protection"). In determining whether a right to privacy exists via the Fourth Amendment, courts apply the reasonableness standard, set forth in the concurring opinion of Justice Harlan in Katz:
 
‘First that a person(s) have exhibited an actual (subjective expectation of privacy) and second that the expectation be one that society is prepared to recognize as reasonable.’” Id. at 361, 516 (Harlan, J. concurring) (internal quotations omitted)
 
Right of Privacy-Facebook, MySpace
 
Keep in mind that the privacy protections under the U.S. Constitution, such as the Fourth Amendment apply only to public employers. The Fourth Amendment regulates conduct by the state, however, it does not apply to private employers. See O'Connor v. Ortega, 480 U.S. 709,715 (1987)
 
The Court then noted that New York Courts have yet to address whether there exists a right to privacy regarding what individuals post on their on-line social networking page; such as, in Facebook and MySpace. It then pointed out that the Second Circuit Court of Appeals has held that individuals may not enjoy such an expectation of privacy citing US v. Lifshitz, 369 F3d. 173 92ND Cir. 20040 and Guest v. Leis, 255 F.3d 325(6th Cir., 2001) which noted:
                        "Users would logically look at legitimate expectation of privacy in materials intended for publication or public posting. They would lose a legitimate expectation of privacy in an e-mail that had already reached its recipient; at this                           moment, the e-mailer would be analogous to a letter-writer whose expectation of privacy ordinarily terminates upon delivery of the letter."
           
The Court, In Romano, noted similar holdings in the Beye v. Horizon Blue Cross Blue Shield of New Jersey, (DNJ Dec. 14, 2007) and Moreno v. Hanford Sentinel, Inc., 2009 Cal App. (Ct. App. 5 Dist. 2009), which held that no person would have a reasonable expectation of privacy where such person took the affirmative act of posting their own writing on MySpace, making it available to anyone with a computer and opening it up to public view.
 
Effect of Privacy Settings                                                                                         
 
Additionally the Court noted that neither Facebook nor MySpace guaranteed complete privacy. Thus, when Romano created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings.  That is the very nature and purpose of social networking sites, or else they would cease to exist.
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Neither Facebook nor MySpace guarantee complete privacy. Thus, when Romano created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. That is the very nature and purpose of social networking sites, or else they would cease to exist.
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The court then ordered the defendant Steelcase 's Motion for an Order granting it access to Plaintiff's current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information is granted.
 
In the employer case, involving a discovery dispute with the EEOC as Plaintiff in a sexual harassment lawsuit, namely that of EEOC v. Simply Storage Management, LLC et.al. (So. Dist. IN.Indpls Div., May 11, 2010), the EEOC objected to the employer’s request for the personal information of two female employees’ Facebook and MySpace accounts, including postings of pictures, videos and status updates. This was in an attempt by the employer to counter the severe emotional distress claims of anxiety, depression and posttraumatic stress allegedly created by their hostile work environment.
 
The EEOC claimed that these discovery requests were an invasion of the employees’ privacy, over broad and not relevant. 
 
The question presented to the U.S. District Court for the Southern District of Indiana as the employees’ rights of privacy was:
 
“Whether two of the claimants must produce the internet social networking site (SNS) profiles and other communication from their Facebook and MySpace.com accounts.” The court noted that in the use of the term profiles that the court interprets ‘profile’ to mean any content – including postings, pictures, blogs, messages, personal information, lists of ‘friends’ or causes joined – that the user has placed or created by using her user account.’” 
 
The Court first dealt with the employee’s use of privacy and held that such “blocked or private” settings do not shield such discovery requests that are relevant. It added that any privacy or confidentiality concerns can be alleviated by having an appropriate protective order as the one already entered in the case.
 
Concerning the relevancy of the employer’s requests, the Court noted that the employees have placed into issue their mental and emotional health in the request for damages. In this context, the Court stated that “It is reasonable to expect severe emotional or mental injury to manifest itself in some SNS content, and an examination of that content might reveal whether onset occurred, when, and the degree of distress.”
 
The Court then tackled the question of the scope of the discovery that should be permitted. After discussing the relevant parameters, it held that “the Court determines that the appropriate scope of relevance is any profiles, postings, or messages (including status updates, wall comments, causes joined, groups joined, activity streams and/or blog entries) and SNS applications for the claimant Zupan and Strahl for the period from April 23, 2007, through the present that reveal, refer, or related to events that could reasonably be expected to produce a significant emotion, feeling or mental state.” Also third party communications to the claimants were ordered to be produced “if they place these claimants' own communication in context.”
 
In specifically addressing the claimants’ privacy concerns in addition to the agreed protective order that was already in place, the Court commented:
 
“Further, the court finds that this concern is out weighed by the fact that the production here would be of information that the claimants have already shared with at least one other person through private messages or a larger number of people through postings.
 
As one judge observed ‘Facebook is not used as a means by which account holders carry on monologues with themselves.’” [citing Leduc v. Roman, 2009 CanLII 6838, at paragraph 31 (ON S.C)].
 
Because millions of active members utilize social networking sites, such as Facebook and MySpace, attorneys are using these SNS accounts as a part of their arsenal to obtain evidence countering allegations of severe emotional distress, hostile work environment and a host of other claims, especially in employment discrimination cases.
______________________________________________________________________________

Because millions of active members utilize social networking sites, such as Facebook and MySpace, attorneys are using these SNS accounts as a part of their arsenal to obtain evidence countering allegations of severe emotional distress, hostile work environment and a host of other claims, especially in employment discrimination cases.

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In City of Ontario v. Quon, 560 U.S. Supreme Court (2010) the U.S. Supreme Court decided a social networking case involving the City of Ontario. The city of Ontario's police department provided pagers that allowed texting, but did not have a feature preserving the texts on the city's equipment. The police department also had a technology policy that was ambiguous, as it did not cover the pagers and texting, but prohibited the personal use of its computer and e-mail systems. Additionally there was evidence that a supervisor told officers that their texts would not be monitored if they paid overage fees. The question that was before the Supreme Court was: "whether a police sergeant (Quon) had a reasonable expectation of privacy in sexually explicit texts sent to his wife and mistress on city-owned equipment during work hours using a third-party internet service paid for by the city.”
 
The Court held that:
 
                        "Even assuming that Quon had a reasonable expectation of privacy in his text messages, the search was reasonable under both O'Connor approaches-the plurality and Justice Scalia's."
 
Justice Scalia's opines that he would have held:
 
                        "That government searches, to retrieve work-related materials or to investigate violations of workplace rules-searches of the sort that are regarded as reasonable and normal in the private-employer context do not violate ……..Amendment."
 
The U.S. Supreme Court in Quon noted the rapidly changing nature of communications and technology and how employers adapt to such changes and in relevant part stated:
 
                        "…Another amicus points out that the law is beginning to respond to these developments, as some states have recently passed statutes requiring employers to notify employees when monitoring their electronic communications… At present, it is uncertain how workplace norms and the law's treatment of them will evolve…Employer policies concerning communications will of course shape the reasonable expectations of their employees especially to the extent that such policies are clearly communicated."
 
Federal Trade Commission (FTC) Regulations
 
Recently the FTC issued its "Endorsement Guides" ("Guides") that affect most employers (i.e., those that allow employee access to an employer's computers). These particular FTC Guides concern the use of endorsement and testimonials in "advertising". These Guides contain strict restrictions on employees' use of social media to talk up an employer's product or service. Section 255.1(d) of the Guides provides that:
 
                        “Advertisers are subject to liability for false or unsubstantiated statements made through endorsements, or for failing to disclose material connections between themselves and their endorsers. Endorsers also may be liable for statements made in the course of their endorsements.”
 
Accordingly, an employee who works for a computer company that endorses its product on-line must disclose that employment connection when endorsing the product. "Endorsement" is defined as any advertising message, including on-line statements, that reflect the opinions, beliefs or experiences of a party other than the sponsoring advertiser that consumers are likely to believe. See Sec. 255.0(b).
 
As to the employer, this means that anytime your employee endorses your product or service, he or she is required to disclose their employment relationship.
 
If there is no disclosure of the employment relationship when the employer uses the social media to make unsubstantiated or even false statements about their employer's product or services, employer's may face liability, including an FTC investigation or enforcement action, even if the statements were not authorized by the employer. There is no private right to action.
 
Thus, it is critical for an employer to have a social-media policy making clear that employees are not permitted to talk about the company or its products or services, unless an appropriate disclaimer is set out stating the employee's affiliation with the employer.
 
What is an appropriate disclaimer? The Guidelines provide that any disclaimer has to be clear enough to the average person that makes it reasonably apparent of the parties' connections.
 
 
Stored Communications Act (SCA)
 
The law has been, until recently, that a private-sector employer had the right to access e-mail and internet activity with employer equipment, as along as the employer had a published policy that clearly informed employees that such systems would be monitored, even if such activity was password protected. Employees simply had no reasonable expectation of privacy where such a clear policy was published and enforced. However, the justices in the Ninth Circuit 2002 case of Knopp v. Hawaiian Airlines, 302 F.3d 862, 880 (9th Cir. 2002), held that the unauthorized access and review of the contents of a password protected, invitation-only MySpace website, that required members to login with a username and password, could constitute violations of both the Wiretap Act, 18 U.S.C. §§ 2510-2520 and the Stored Communications Act, 18 U.S.C. §§ 2701-2710. On this website Knopp advocated for alternative union representation and complained about the company. A Hawaiian Airlines Vice-President improperly accessed the pilot's website by obtaining the password from other pilots and terminated Knopp. The Ninth Circuit also found that this conduct constituted improper surveillance and violated the Railway Labor Act, 45 U.S.C. §152.
 
In a more recent case that of Pietrylo v. Hillstone Restaurant Group 29 IER Cas. 1438, 2009 WL 3128420, (D.N.J. 2009) (Reported in the November, 2009 issue of Employment Law Update), the federal district court in New Jersey affirmed an award of compensatory and punitive damages where a couple of restaurant managers were found to have violated the Stored Communications Act by allegedly improperly accessing an employee's private password-protected, invitation-only MySpace website that was created during off work hours for “gossip/ drama/ crap,” calling the chat-room "Spec-Tator." The managers used the critical comments of the company-they found on the website as grounds to terminate Pietrylo and Doreen Marino. Managerial access was gained by using the password improperly obtained from another employee, who was also a member of the chat room group. However the Court found that she gave the password under duress, because she felt that by not giving management the password  she "would have gotten in trouble," although she testified she knew that she would not have been fired.
 
The Court denied Houston's motion for summary judgment on the grounds that if the evidence established that the managers did improperly obtain the password from the member of the group under improper duress and threats, this disputed fact related to the key finding of a violation of the Stored Communications Act, with regard to whether the managers had "consent" to view the "Spec-Tator" chat room MySpace website.
 
Practical Concerns
 
As shown, social media sharing creates a multitude of risks to the employer in a number of ways. Some real-life examples of social network sharing that have caused either negative publicity for the employer or created regulatory agency attention are:
 
  • Dominos Pizza employees posted video showing how their pizzas were made, with their employees engaging in less than hygienic practices in making pizza as well as their mocking customers.
  • In October, 2008 Virgin Airlines hosts and hostesses posted disparaging remarks about their airplanes and customers.
  • An April, 2009 Wall Street Journal Article reported that the Securities Exchange Commission is monitoring corporate communications made via Twitter
  • As reported recently in the Washington Post, a commercial website called Glassdoor.com giving "an inside look at jobs and companies" has set up a page just for CIA employees. As reported, one senior analyst has called the agency "behind the times and slow to catch up with a ‘bureaucratic mindset among analysts and managers,’ an obsession over 'chasing the news' and little focus on real analysis."
  • Therefore, it is necessary to manage risk, by creating and enforcing a social media policy that reduces or eliminates employer risk. Such a sample policy is set out below. Keep in mind that the policy should be tailored to fit the business needs and legalities pertaining to the specific industry and products of service involved.

ABC's Social Media Policy
 
The following policy applies to all employees and contractors of ABC Company and covers all public access via the internet relating to ABC's business and corporate brand. These policy guidelines include, but are not limited to: Twittering, blogs, discussion forums, newsgroups and e-mail distribution groups. Personal social media use on working time is not allowed.
 
Actions You Should Take:
 
  1. Disclose your affiliation: All ABC employees who communicate about matters related to ABC must identify themselves and their affiliation with the ABC Company.
  2. Always Make A Disclaimer: If you place a statement online in any personal blog or website and it has to do in any way with your work at ABC, use such a disclaimer as: "The postings on this site are my own opinion and do not represent my employer's positions, strategies, business operations or its opinions.
  3. Never Provide ABC's Confidential, Proprietary or Trade Secret Information: Do not publish, post or in any way convey information that is considered confidential, proprietary or trade secret information . Ask yourselves: Would this public statement in any way aid our competition?
  4. Never Cite, Criticize or Reference Customers or Vendors: Make sure you stick to your opinions. Do not attack personally vendors or customers, or cast them in a negative light, or disparage the Company in anyway.                        
  5. Respect Your Audience: Act responsibly and ethically. Do not make any false claims, job titles, or use any illegal, racist, sexual, insulting, defamatory or obscene language, or engage in any communication that would be threatening or infringing on intellectual property or invading the privacy of an employee or otherwise injurious or discriminatory.
  6. Do Not Use Copyrighted Material or Plagiarize Such Material: Do not use or incorporate ABC's logo, trademark or publish any other company copyrighted materials. This includes photos, imagery or derivatives thereof in your address, screen name, home page, and screen imagery. Be sure you have the right to use something with proper attribution before you post it.
  7. Don't Pick Fights: If there are incorrect or false statements made, you may wish to counter with a positive statement of fact, as long as it does not disclose confidential information.
  8. You Should Never Disclose: Non-public financial or operational information. These includes strategies, forecasts, revenues, profits, and any information related to specific brands, products, product lines, pricing policy, customers, operating units, nor disclose, information about any specific customer or vendor.
  9. Expertise and Advice:  Do not purport to communicate advice on legal matters. Speak only on those matters about which you have first-hand knowledge and only on those matters that are not privileged and confidential.
  10. Follow All Company Policies: These policies are intended to supplement-not replace- ABC's personnel policies. Policies on personal use of company equipment, internet usage, confidentiality, trade secrets, and publication of articles, harassment, and any other rules of conduct are not affected by these policies. You should understand that ABC Company retains the right to monitor employee use of all company owned and issued data storage devices for engagingin discourse on social media and networking sites even if the social networking or social media use is during non-work time or is password protected.
    Employees have no right to a reasonable expectation of privacy with respect to any such information even if such information is sent through use of employee's personal e-mail account with company equipment. The company reserves the right to access, review and disclose any such information in accordance with all applicable law.

    If not specifically addressed in this policy, an issue or problem may be clarified by resorting to other company policies. Similarly, conduct that violates these policies will subject the staff, associate, or employee to the same action as set forth in the ABC disciplinary policy, up to and including termination.

 
Editorial Comment:
 
Under current case law when employees publish information about themselves on the internet with employer equipment, even though the information is intended only to be accessible among few friends such as limited dissemination, their right of privacy for this information is destroyed, as it can be accessed by others. SCA cases cover those privacy concerns, where the employers engaged in coercive or egregious conduct to obtain an employee's privacy settings thereby destroying the necessary "consent" required by the SCA. However, in those cases where the employer voluntarily obtained such authorizations, the SCA would not come into play.
 
Employers would be well-advised to heed the U.S. Supreme Court's decision in Quon, as well as the current stance of the NLRB and begin the following:
           
  1. Develop an e-mail, internet and social media policy setting for your right to content of any internet or e-mail use by employees from the employer's equipment, whether the employee postings have privacy settings or not to maintain compliance with your policy and the ever evolving law (See the sample guide set forth above.)
  2. Decide whether or not you as the employer will allow employees to use or access any personal e-mail accounts for non-work usage utilizing employer equipment. Consider setting workplace computers with security software, so that employees cannot use company equipment to access personal websites.
  3. You may want to develop a training program regarding your social media policy including going over your confidentiality policy, what constitutes proprietary trade secrets information, privacy concerns, Section 7 rights and Federal Trade Commission "Guides". 
  4. Re-evaluate on a period basis your social media policy. Technology and social media communications are developing at warp speed.
  5. Make it clear in any social media policy what conduct is acceptable and what is not and the possibility of discipline up to and including termination.
  6. Section 7 rights apply whether a company is unionized or not. Review your social media policies to ensure that any restrictions on communications about the Company are tailored to things that the company can legitimately restrict, like violations of the company harassment policy, or disclosure of confidential or trade secret information.  But those restrictions should not be so broad as to prohibit all employee discussion of the company on their social media pages because the NLRB will likely consider that overbroad and a violation of Section 7 rights.
There are many considerations when writing the Social Media Policy, not the least of which is clarifying intent so that it cannot be found in violation of employee rights (both unionized and union-free) who are entitled to participate in Protected Concerted Activities as outlined in Section 7 of the NLRA, a amended.
 
Back in December, 2009, the NLRB’s Office of the General Counsel issued an Advice Memorandum that addressed the circumstances under which an employer’s social media policy might violate Section 8(a)(1) of the NLRA because it might chill employee participation in concerted activities. Though the Memorandum did not constitute binding precedent, the General Counsel’s office concluded that the policy at issue, published by Sears Holdings, did not violate Section 8(a)(1) because, read as a whole, the policy could not be reasonably viewed by an employee as chilling union activity. The disputed provision in the policy prohibited “Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects.” The prohibition against disparaging the company, while perhaps read by itself might tend to discourage employees from engaging in concerted activity, was included among several other provisions that clearly did not violate Section 8(a)(1).  In addition, there was no evidence that the employer utilized the policy to discipline any employee for engaging in protected activity, or that the Policy was promulgated in response to any other concerted or union activity.
 
Avoid making restrictions so broad that they prohibit all employee discussion of the company on their social media pages because the NLRB will likely consider that overly broad and a violation of Section 7 rights. The key here is whether Company policy has a “chilling effect” on exercising Section 7 rights, when the policy is interpreted as a whole in context. See Tradesmen International, 338 NLRB 460, 462 (2002), where the policy preamble explained its design and intent to protect the employer and its employees, “rather than to restrict the flow of useful and appropriate information. The Board further found that:
 
“Taken as a whole, as in Tradesmen International, the Policy contains sufficient examples and explanation of purpose for a reasonable employee to understand that it prohibits the online sharing of confidential intellectual property or egregiously inappropriate language and not Section 7 protected complaints about the Employer or working conditions. This conclusion is bolstered by evidence showing that employees continued to discuss the Union campaign on the s-tech listserv after the Employer implemented the Policy. We conclude that no employee could reasonably construe the Employer’s Social Media Policy to prohibit Section 7 [rights].”
 
Therefore make sure your policy sets out that employer monitoring of social media sites will only be performed in accordance with all applicable laws.
 

Written and Published By Arthur D. Rutkowski

Rutkowski & Associates, Inc.
Employment Law Update
Bowers Harrison, LLP
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