Admit it, you have checked your Facebook or Tweeted something on your phone while you are at work.  I bet you are even doing it now as you read this blog!  There are some legitimate concerns that an employer, employee, and in general people should be concerned about when working and using social media.
Your boss may use social media at work, but it may be a part of their job.  For you, it may be a different story.  What can an employee do with their social media accounts on the job?  Off the job?

In this post I will discuss what an employee can expect out of an employer’s social media policy, some of the laws surrounding social media policy, and the limitations of a policy.

Handbooks and Social Media Policy 

Most workplaces have an electronic communications, e-mail and internet usage, or some kind of policy in their handbooks that deals with communications in the digital age.   An employee should be aware what the company’s policies are regarding their behavior when it comes to using social media, and often it will be in the handbook.  For an employer, they should be aware that crafting a social media policy is not always easy and should read the following posts in this series where I will discuss crafting such a policy.

In addition, remember from the prior post that Hawaii is an employment-at-will state.  So long as the employer does not fire the employee under protected statuses or activities they can choose any reason or no reason at all to fire you.  Therefore, if they do not want you texting, checking your Facebook, and/or Tweeting about how the surf is up on company time and resources (i.e. their computers) then you should not be.  They can fire you for breaking workplace policy and just because they do not like that behavior.

Employee Must Remain Loyal to their Employer

An employee should be loyal to their employer.  This legal concept has a clear foundation in common law, meaning its been around a while, and a generally accepted view in the legal system.  Specifically, an employee has a duty to act for the sole benefit for his or her employer while engaged in any conduct related to employment.  Generally, social media enters into this equation when it comes to the sharing of company trade secrets and confidential information.

Trade Secrets, NDAs, Non-competes and Customer Lists

 

What is a trade secret? It is a formula, practice, process, design, instrument, pattern or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers.

While an employee is working for an employer they should be loyal, and not be utilizing information they are entrusted with to the detriment of their employer.  To strengthen this concept, employers typically have employees sign Non-Disclosure Agreements (NDA) and Non-Compete Agreements.  An obvious violation of the law and these types of agreements would be if an employee responsible for mixing delicious island pineapple soda, then posted the secret formula on their Facebook for all their friends to be able to make for potluck at the beach.

However, the situation becomes a little bit more unclear when it has to do with customer lists and the connections made through social media.  Recently, two cases touched upon this issue.  The general situation of both cases was an ex-employee would gather information about clients and then leave their job for a competitor.  They would retain that client information and bring it with them to their new job.  The issue that the courts never fully dealt with was that it was through their use of social media, LinkedIn, that they were able to keep this client information.

Businesses usually like to keep their customer/client lists protected, partly for the clients’ privacy, but more for the fact that the business used resources and put together information to keep those clients.  Specifically, with LinkedIn, the service is designed to create connections and for the most part the information about the “links” or “connections” are freely accessible.  In the past, employees that were leaving would turn in their files, Rolodex, Blackberry, etc . . . . keeping no company information, but with LinkedIn, your account stays with you.

For the employer, you should draft a well coordinated social media policy based on your company’s industry and use of information.  For the employee, read the handbook policy, any non-disclosure, non-compete, and non-solicitation agreements you sign.  The general rule of thumb that both parties should be aware of is if the information is readily accessible, easily attainable, and anyone can find it, then it will be less likely to be considered a protected trade secret.  That being said companies should still take active steps to protect any information they gather.

What About Complaints about the Company or Bashing the Boss?

So you hate your boss and like complain about him on Twitter?  Can he fire you?  Are you being disloyal?  This is where the legal water is still a little murky.  Recently, the National Relations Labor Board (NLRB) has filed a string of complaints against company’s that have sacked employees based on their social media posts.  Specifically, the contents of these posts constitute protected activities, as asserted by the NLRB.  Oh good, I don’t have a union, you must be thinking.  No, sorry, rights of employees (union or non-union) are still under the NLRB’s power.

In one situation an employee was fired for basically calling her boss a psych patient on her Facebook page.  The company subsequently fired her, citing their blogging and Internet posting policy.  However, the policy was considered overboard and specifically:

contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the Internet without company permission.  Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.

“Protected concerted activity” means the following: discussion of wages, working conditions, and employment related matters and employees are allowed to post, blog or Tweet their opinions on such things, even though the boss or company may not like what you are saying.   However, what does that mean?

In the following situation the NLRB sided with the employer, a newspaper, who fired a reported for posting inappropriate and offensive Twitter.  The NLRB felt that the remarks of the reporter did not involve protected concerted activity.  If you as an employee, post offensive and inappropriate comments that are not work-related, then it is okay to let you go.

However, during the disciplinary meetings management also gave the following restrictions:

  • to stop airing his grievances or commenting about the employer in any public forum; and
  • to not Tweet about anything work related; and
  • to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company.

Ultimately, the NLRB sided with the employer because the newspaper had fired the reporter for Tweeting offensive remarks.  However, the NLRB made clear that if any of these prohibitions were to appear in a social media policy they would be an unlawful restriction and constitute a violation the employee’s rights.  As an employer, do you have some of this kind of broad language in your social media policy?  What are you to do?

That will be the topic for next time, Creating a Social Media Policy: Thoughts and Tips for the Employer-Employee Relationship.  While, social media policy concerns much of itself with a company’s relationship between it and its employees a social media policy is not just for an employee handbook.   A company’s policy position also contains broad implications about how the company interacts with social media, its customers, its competitors, and its own image.  I will also touch upon these subjects in future posts.

See you next time on Social Media and the Law!

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

I would just like to inform my readers that this blawg post will be delayed till later tonight, as I have been busy working on some other projects.  However, it will definitely be up today (6/21/11) and will discuss more from the employee’s perspective about their social media usage at work.

Access to Justice Means Giving People the Tools to Get There

In the mean time, here is some food for thought.  Lately, I have been trying to get more involved with access to justice here in Hawaii.  If you read my Civil Beat article, then you know I supported the passage of the increase to ILAF to fund organizations that do good work in terms of making justice accessible for the community.

However, as I stated I believe that there is an information gap as we continue to expand our laws and create a civil society.  Those who do not have access typically are also behind the curve when it comes to technology use because let’s face it, obtaining computers and smartphones may be relatively inexpensive for professionals, but not for others.   The Governor of Hawaii has made a drive to adopt and upgrade our technologies, and I support him in this endeavor.

In my humble opinion, I would like to see as his term continues on a stronger an investment in tools and infrastructure.  Namely,  I really think that we need to get cheap laptops and computers into our impoverished communities, and set-up free wifi spots throughout the State.  Why?  I don’t believe you get to access justice if you do not even know what is going on or where to look.  With infrastructure in place, kids are pretty smart once you give them some educational training, they can then begin seeking out all the knowledge that the web has to offer (i.e. like the information on this blawg).

Communication devices and the infrastructure to support them will bring greater access to justice because the population will be more knowledgeable and have skills needed to survive in this age of digital information.  Simple searches on an easy to use laptop through a public wifi network will bring them one step closer to getting answers or at least asking the right questions, which as many attorneys know all apart of the law.  Just my thoughts on social justice and public expenditures.

Anyway, see you later with my Social Media and the Law post!

Admit it.  You have posted something on Facebook or Tweeted on your phone while you are at work today.  I bet you are even doing it now as you read this blog!  However, there are some legitimate concerns that an employer and employee should have when dealing with the workplace and social media usage.

The Employer and Social Media Use by Employees

As an employer should I be concerned that my employees are using social media on the job?   The answer to this question is a definite, “yes.”  Today, we will focus on an employer’s liability for the actions of their employees, what that means for social media use by an employee, and the various laws that come into that type of situation.

Employer Responsibility for the Actions of Employees: Respondeat Superior

Remember, how I mentioned in the last post that it is part of your due diligence to research qualified applicants?  Well, the reason is that you, the employer, is responsible for actions by your employees during work.  In the law we call it respondeat superior and it means “let the master answer” in Latin.

For example, let’s say a local moving company’s careless truck driver crashes the company truck into another car during rush hour in Downtown Honolulu.  The car driver will sue the moving company for hiring such a terrible employee.  It is due to respondeat superior that the driver can sue the employer (the master) for the negligent action of their employee.

How Social Media Fits into this Employer-Employee Relationship

With social media replace that truck with tools like Facebook and Twitter, and you see how you could be on the hook for your workers.  For example, let’s say you are a Honolulu marketing firm, and one of your employees decides to help your company by blasting your Maui competitor via Facebook;  they make false claims and are using the Maui company’s images in their Facebook attack.  They also then spend a better part of the working day harassing the Maui company’s Twitter feed by tweeting lewd questions.  Are you in big trouble for their actions?

Yes.  Now, let’s briefly look at some of the legal concerns that you should worry about when dealing with employees that use social media.

Trademark, Copyright and Patent Infringement

In the example story of the employee who used social media to attack the Maui company, they used another company’s image.  Whenever, you use another company’s intellectual property (trademarks, copyrights, and patents) without authorization you will face an infringement claim.  Let’s say an employee uses a rival company’s logo and crosses it out by using a digital media editor.  He then shares the picture through Facebook to proclaim that your company’s brand is better.  The use of their logo is a violation of their property right. Posting photographs, published works, or video clips owned by someone else can also present legal risk to the employer.

Defamation

An employee that is Tweeting or posting false statements that hurt another person or business’s reputation opens you up to a potential lawsuit.  Your employee that spends half her day attacking another company and making false claims about their products or services is a problem for you.

Harassment/Discrimination

We have heard in the news about “cyberbullying” in the schools, but apply those same behaviors to workers.  The employer has a duty to create a safe working environment and if one guy is “textually harassing” other workers it could open you to harassment claims by those workers.  If this bully is also singling out someone of a protected class (race, religion, sexual orientation, etc . . .) that also can lead to a discrimination claim.

Invasion of Privacy

Now, let’s say one of your managers accesses a worker’s private file and discovers that worker is a recovering alcoholic.  He then posts something to the effect of, “Did you know that so-and-so had alcohol problems?” to his friends on Facebook or tweets about it.  This would be an invasion of privacy of the worker.

Endorsements: Too Much of a Good Thing

Endorsements?  Isn’t it a good thing that my employee is helping me out?  It can be, sometimes.  However, in Hawaii were there are tons of workers who love their company like a family, the employer has to watch that their employees are not gushing over the company’s products and services and not disclosing their allegiance.  The Federal Trade Commission (FTC) has issued several rules and guidelines regarding employees promoting their employer’s services and products via social media.  Basically, if they do not disclose their relationship and reader of the post that gets injured because of it the employer may be sued even though it was the employee who wrote the post.

For Medical Providers: HIPAA Concerns

This is a special note for medical practitioners and those in medical-related fields that handle patient information.  I’m sure you all are aware of HIPAA.  Then you should realize that the following combination of a patient’s private information, an unhappy employee, and that unhappy employee’s access to social media is a potentially explosive legal situation.

In fact, a similar situation has already occurred in Hawaii, where in 2009 a hospital worker was sentenced to a one-year jail term for accessing a patient’s medical record and posting the patient’s HIV status on her social media account.  While, the state was suing the employee, you should remember that employers are responsible for their employees and medical employers should always be concerned with a breach in Protected Health Information (PHI). In the case of posting a patient’s medical condition on a social media site, such an action is a definite breach.

For Lawyers and their Staff: Violating Attorney-Client Confidentiality

Those in the legal industry should already be able to see the headache that social media means for attorney-client confidentiality.  It easily takes one tweet or Facebook post by a legal secretary or paralegal that discusses what they are working on to violate legal ethics and rules.  Lawyers should take pains to train their staff from posting or tweeting about anything related to cases and clients.

Last Words

While, these things should of be concern to any business owner with employees in this day of social media there are steps they can take to deal with the situation.  Other than having a good screening and hiring process for thoughtful employees and employer can fashion a social media policy.  An attorney can investigate your workplace, make recommendations, and draft such a policy to be added to your handbook.  A rational and coherent social media policy would discourage many of the aforementioned behaviors and allow you to explain to workers what is acceptable with regard to social media and its use.  Finally, it may allow you to take steps to possibly terminate or punish that employee for violating your policy.  However, there are certain boundaries of what can be enforced in a social media policy.

With that, see you in the next Social Media and the Law where we will continue with Part II of Using Social Media at Work.  We will discuss the situation more form the employee’s side and some of the boundaries of what an employer can do with their social media policy.

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

This post and the next several posts will be about social media and its use in the workplace and the various laws that govern that interaction.  Today’s post discusses using social media during the job application process from the employer and potential employee’s perspectives.

Hiring the Right Person for the Job Requires Information

Accurate information about potential hires is valuable and social media businesses know that fact.  Just look at LinkedIn’s S-1 Filing with the SEC, in which they state that the limiting of access to their website and updating of users’ information would negatively impact their business model. (Source: LinkedIn’s S-1 Filing, See pg. 24)  They realize that up-to-date information is a must for the hiring of skilled workers.

The reality is that information about potential and current employees is valuable to any small business whether it is in Honolulu or somewhere else, but there are legal boundaries that both employers and employees should know of.

Employers using Social Media to Check Backgrounds of Potential Hires

Let’s say you just graduated.  You are applying to some business or firm in downtown Honolulu.  You submit your resume.  What happens?  Well, the person responsible for the hiring will likely peruse it and if interested do a precursory Internet search on your name to determine if they want to interview you.  Why?

Employers want to hire the best people to meet their goals.  Legally, employers are also responsible for their employees, so they want to know they are hiring someone they can trust and act responsibly.  Like it or not your social media is a representation of you, especially considering you are the one that updates it.

Employment-At-Will

Hawaii is an employment-at-will state, what that basically means so long as a business does not violate a specific law, that downtown Honolulu firm you are applying to can choose not to hire you for any list of reasons or no reason at all.  So posting that you are getting drunk every night of the week might give an employer pause and ask themselves would you behave the same when employed?  It will probably affect the businesses hiring decision.

Discrimination

Discrimination is one of those specific laws that a business cannot violate. In regard to today’s topic, employment discrimination includes hiring practices, such as application forms, interviews, and selection.  In general, Hawaii and federal law, specifically protect the following statuses:

  • Sex
  • Race
  • Ancestry/national origin
  • Religion
  • Color
  • Disability
  • Age
  • Marital status
  • Income for child support obligations
  • Arrest and court record
  • National Guard participation
  • Sexual Orientation
  • Breast Feeding

Finally, do not forget that Hawaii recently added gender expression as a protected status in regards to employment matters. If you want to know more read my earlier post.

An example of violating discrimination laws would be if you, as a business owner, only checked Facebook or the Internet on applicants of a certain race or gender.  Another type of discrimination is if you as the employer searched social media accounts on all applicants, but you used the same information differently against one particular type of applicants.  For example, if all your applicants had pictures of themselves of drinking alcohol in public, but you viewed that fact more negatively against the female, or White, or gay applicants against the rest of the group that would be considered discrimination.

Privacy

Besides discrimination an employer should also be concerned with an invasion of privacy claim by a potential employee.  Generally, the potential employee has a tough time asserting this claim because you need a “reasonable expectation of privacy” and a lot of people keep their social media profiles open and to the public.  However, it is clear that if the applicant is using the highest privacy settings and the employer somehow gets pass all these barriers the claim is stronger.

Fair Credit Reporting Act

In addition, to revealing protected statuses like race or religion, intruding on their privacy, an employer’s simple act of searching social media may run them afoul with the Fair Credit Reporting Act (FCRA).  This federal law does not just cover credit reports, but cover the simple act of surfing the net for information on the potential employee.  Essentially, this compiled information is considered a “consumer report” and an employer cannot use this information unless it was obtained from a credit reporting agency, consented to by the applicant, or that applicant has been provided written notice of such a search.  Oft times a small business utilizes a third-party to its hiring because it is more cost effective, but what they do not realize that the background checks (which includes social media searches) need to be authorized by the applicant unless it violates the FCRA.

Violating Terms of Use

I want to make a quick mention of violating terms of use on a social media site.  Those conditions that Twitter, Facebook, LinkedIn, etc . . . dictate how users, including people just stopping by to search someone out may use their sites.  You may run into trouble with those rules when you conduct searches and use that information incorrectly.  This in turn may expose you to other various lawsuits by the potential employee or even by the social media company itself.

Some Quick Tips and Last Words

For Potential Employees:

  1. Use the Privacy Settings on Facebook;
  2. Watch what you say on Twitter;
  3. Get a LinkedIn account;
  4. Search yourself on Google and make note what pops up; and
  5. Take steps to clear up negative impressions on the Web.

Basically, assume that any business you are applying to will search for information on you.  It is helps them evaluate you for the job.  If the information that you make public casts a negative light on you chances are they will not consider you for the job.  I suggest getting a LinkedIn Profile, as it can act as a professional resume and is readily accessible online, and it can easily be the first thing that pops up in a Google search on your name.  Also it can give more details in your profile than in your paper resume.  It also gets you in the habit of updating information about yourself for business purposes regularly.

*This one is for law students.  In recent years, the Florida Board of Bar Examiners filed their recommendation to search a bar applicant’s social media profile for the character and fitness investigation part of the application.  While Hawaii Bar does not consider that part of its application process yet, you all should be aware that a lawyer’s reputation is a key element to the practice of law.  With social media becoming part of our daily lives it is likely that many other bars will follow the FBBE’s recommendation.

For Employers:

  1. Review employment/hiring laws;
  2. Review hiring practices and polices, if you do not have any, now is the time to create some;
  3. Review the terms of use on any social media site you use for hiring;
  4. Implement/update a hiring policy so that is consistent with the law and terms of use agreements.

The bottom line is do not consider factors that have no relevancy to job performance, such as race, age, and sexual orientation.  They all are protected statuses by the law and using them as your criteria for hiring is discriminatory.  In addition, you should realize that a lot of social media information, but up my individual users is not always reliable.  In fact, people like to put up jokes, stories, and other forms of untrue information.  Finally, if you are unsure about the hiring policies or decisions that you are making have an attorney review them.

As a measure of practicality remember to take into account business factors too.  You should think about things like employee morale and public when you consider your hiring practices.  You may consider using social media as a beneficial recruitment tool rather than trying to search out every flawed characteristics of a candidate, especially with how LinkedIn is formatted.

Next time on Social Media I’ll discuss using social media use on the job.  Admit it.  You have checked your Facebook at work today!

*Disclaimer:  This post discusses general legal issues, but does not constitute legal advice in any respect.   No reader should act or refrain from acting based on information contained herein without seeking the advice of counsel in the relevant jurisdiction.   Ryan K. Hew, Attorney At Law, LLLC expressly disclaims all liability in respect to any actions taken or not taken based on the contents of this post.

New Series of Posts: Social Media and the Law

Later today I will be posting the first in a series of posts detailing Social Media and its interaction with the law.  Generally, it is geared toward small businesses, law students, and social media users.  In particular, for those groups of people living, working, and playing in Hawaii. However, everyone is welcome to read for their own education.

Let me give you a quick overview of the five major topic areas that I will be covering in posts over the next couple of months. They are as follows:

  1. Social Media and the Workplace
  2. Creating and Implementing a Social Media Policy
  3. Using Social Media as Evidence
  4. Social Media and Legal Miscellany

Today’s post will be under Social Media and the Workplace, specifically the hiring and background checks of potential employees by employers.  Please note that I will be switching the schedule of my postings.  The Social Media and the Law posts will come out Mondays or Tuesdays of the week and Draw the Law will be on Fridays or Saturdays of the week.

In the mean time, look below and check out some interesting facts on social media.

Just Some Facts about Social Media

Social media is quickly becoming a part of our everyday lives.  Many of us check our social media accounts at least once during the day.  Here are a few interesting facts:  (1) Facebook has more than 500 million active users and 50% of their active users log on Facebook in any given day (Source: Facebook) and (2) Twitter users send out about 55 million Tweets per day.  All of that adds up to an avalanche of information. (Source: DigitalBuzzBlog)

For some more interesting facts, information, and graphics from other sources on social media check out the following links:

Please check out my contributor article about how we can better serve justice in Hawaii and also follow Civil Beat.  They are a great civic investigative forum of news and insight into the daily beat of Hawaii.
The Links:

My article

Civil Beat Main Page

LATEST UPDATE (5/5/11 @ 5:01PM):

KHON2 also posted a little blip from me about Wrongful Termination and Actionline.  Click here to check it out.  I will be doing a post on a legislative update about some of the changes to employment law in a couple of days.  Notably, the protection of gender expression protection, labor trafficking, and domestic violence as a protected class.  HR you might want to take a peak!

In the meantime, prepare those landlord-tenant questions for tomorrow’s last day on Actionline from 11AM – 1PM.  Finally, if you did not get a chance to call in by topics remember the Young Lawyers Division will be putting up free legal clinics on Saturday from 10AM – 2PM.  For further information please check out this link.

For the rest of this week (May 2 – 6) the Young Lawyers Division (YLD) of the Hawaii State Bar Association will be volunteering at the phones of KHON2’s Actionline. We are covering the following topics on the following days from 11AM – 1PM:

  • Monday – Bankruptcy, Foreclosure & Consumer Protection
  • Tuesday – Divorce, Child Custody, Adoption, and Mediation
  • Wednesday -Employment Law/Wrongful Termination
  • Thursday -Elder Care/Elder Law
  • Friday – Landlord and Tenant Law in Hawaii

If you think you have a legal issue or concern, or even just a question, please feel free to call at 591-0222.  If you miss the topic you want to talk to a volunteer attorney about don’t forget the YLD will be putting on free legal clinics throughout the state this Saturday, May 7th, from 10AM – 2PM.  For further information click here.

Actionline Law Week is all pau!  Thank you for your calls and interests.  In addition, I personally would like to thank fellow attorney volunteers that gave up their lunch to field over a hundred calls this week to help people.  If you didn’t get a chance to call please check out the YLD’s Legal Clinics on May 7th, from 10AM – 2PM.

-RKH

From the beginning of my pursuit of a legal career I have been highly addicted to using social media to organize and set-up events.  I see no reason why lawyers should not embrace the the sharing of information in a medium that their clients readily use on a daily basis.  The number one complaint by many clients is lack of communication.  So long as we uphold and abide by the legal ethics that guide our profession we can use social media and technology in a thoughtful and meaningful life to better educate the public and our own profession.
Thus begins the journey of my career and blawg.

-RKH