The Social Media Impact on Personnel Law 1

The Social Media Impact on Personnel Law Jimmy Palacios Webster University – Irvine, CA

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Instructor: Ronald Monard, Esq. Abstract Online social networking is viewed by many as the next new paradigm in personal, professional and organizational networking and marketing. However, as they relate to the employees of today’s workforce and their respective employers, the rules are still be written. This paper will explore a two cases where social media has tested the boundaries of today’s laws and businesses HR practices. As companies continue to draft employment policies around the usage of social media, the enforcement of these polies will continue to shape the landscape of social media’s impact on personnel law.

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Social Media Social Media is the social interaction among people in which they create, share or exchange information and ideas in virtual communities and networks. Social media is heavily dependent upon mobile and web-based technologies that allow companies and individuals to communicate and collaborate. The net result if a fundamental shift in the way organizations, professional communities and individuals work together. One thing is for certain – today’s business climate is on that is extremely competitive. How to leverage the Internet in ways that are unique to you and your business is one of the key areas to establishing a competitive edge. It is not uncommon for a company to establish a social networking strategy without having a measurable result in mind – they simply get into it because they feel they need to. Companies should identify the business process or organizational

strategy they are looking to mature with a social networking strategy. They should be able to establish goals and metrics in order to measure success and allow for the adjustment of their strategy if it is not proving successful. The key is to develop a social media strategy tied to specific business processes. This practice will ultimately surface the legal implications of their use of social networking as it relates to their business. Due to its relative infancy, the inherent risk of social networking use in a business in general will always be present. However, when directly associated to a specific business process, many of the existing rules and restrictions in place can help shape decisions are the use of social media. That said, there have been three common, recurring topics of concern as company practices relate to social media: Privacy, Defamation and Labor Relations.

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Privacy In business, the true, measurable value of social media is simply raw data. Personal information about their current and prospective customers can be critical to the continued success of any organization. Social media provides a valuable method in which companies can communicate with their customers. Companies then leverage this intimate knowledge to sell products and services back to these customers. But their approach is more from a position of trust, rather than pure solicitation, thus preserving the relationship that is often gained in the social media context. However, social media platforms can now gather in ways that were simply impossible just a few years back. This fact raises serious privacy concerns, concerns that could have legal implications I some cases. Most social media sites have terms and conditions that may result in legal liability if an organization’s collection or use of personal information violates those terms. the business? But are these terms and conditions transferrable to the individual and/or

And along with an individual’s privacy – how are the privacy rights of the

organization protected and where is the line drawn? Addressing these concerns will become more commonplace as social media becomes a more acceptable business communication platform. Disparagement and Defamation One of many drawbacks around social media is that it lends itself to being an outlet for defamatory statements to be made about individuals, as well as disparaging remarks about companies’ products and services. Defamation at the organizational level can manifest itself in a couple of different way. One way could be the result of employees attempting to overshadow the competition by making misleading comments or remarks that may be a distortion of the truth

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or completely false about an individual or a competitor’s products or services. This often results in lawsuits being filed, which can sometimes be seen as frivolous, depending on which side you represent. However, new legislation has been drafted to protect such individuals from being personally responsible for defamatory or disparaging comments they’ve made on social media. Legislation such as the Communications Decency Act. Considered a landmark piece of Internet legislation, it states that it provides immunity from liability for providers and users of an “interactive computer service”: who publish information provided by others. However, to qualify for this immunity, the defendant must meet three criteria: • • He/she must be a “provider or user” of an “interactive computer service” The cause of action asserted by the plaintiff must "treat" the defendant "as the publisher or speaker" of the harmful information at issue. • The information must be "provided by another information content provider," i.e., the defendant must not be the "information content provider" of the harmful information at issue. The enforcement of these laws has proven to be difficult since they are somewhat open to interpretation and thus can vary between jurisdictions. Employment Law Issues Social media use in the workplace as it relates to the business’s goods and services raises all sorts of issues. Some leverage social media as part of the background check process in order to qualify candidates for potential employment. In most cases, the company would be required to gain the individuals consent prior to this information being collected, let alone used to make hiring decisions. During the employee’s tenure, policing social media activities can be a little

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difficult with regards to enforcing privacy. Say, for example, an employee is required to use social media as part of their job description (i.e. like a marketing coordinator position). The difficulty lies in identifying where employee privacy starts and company rights to monitoring usage ends. Some employers have been known to create fake social media accounts to monitor social media activities of their employees could also raise legal issues. The question becomes – can information obtained this way legitimately be used against the employee? Case 1 – Facebook Firing In 2010, American Medical Response – an ambulance service provider in Connecticut, fired one of their emergency medical technicians. The firing was in response to one of their EMT’s falling under the accusation of violating a company policy that bars employees from depicting the company “in any way” on Facebook or other social media sites in which they post pictures of themselves. This was the first case that the labor board stepped in to argue on behalf of the worker’s rights. The labor board position is any criticisms of their bosses or companies on a social networking site are a federally protected activity and that any punitive actions taken against an employee for making these statements would be violating their rights. This situation falls under the National Labor Relations Act. Lafe Solomon, the board’s acting general counsel, said, “This is a fairly straightforward case under the National Labor Relations Act — whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that.” The National Labor Relations Act specifically grants employees federally protected rights to form unions and prohibits employers from punishing workers for discussing working conditions or unionization. The board accused the company’s rules around Facebook as being to

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ambiguous and vague, resulting in the improper limitation of employees’ rights to discuss working conditions amongst themselves. The company responded that these claims were without merit. “The employee in question was discharged based on multiple, serious complaints about her behavior,” the company said in a statement. “The employee was also held accountable for negative personal attacks against a co-worker posted publicly on Facebook. The company believes that the offensive statements made against the co-workers were not concerted activity protected under federal law.” Ultimately this case was settled between AMR and the NLRB. AMR’s decision to revise its policies and practices were not binding in future cases. Case 2 - The Tweet Heard Round the World What made this situation fascinating, aside from the sure stupidity of it all, was it demonstrated the power of social media and its influence on decisions based on public opinion and/or influence. Justine Sacco was the head of corporate communications for IAC, a large international media company that managed and operated websites such as About.com, Match.com and The Daily Beast. Her job was centered around communicating with reporters on the company’s behalf and the clients they represented. Sacco was working in London and about to start her long vacation in South Africa when she unfortunately posted the following tweet: "Going to Africa. Hope I don't get AIDS. Just kidding. I'm white!"

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Unbeknownst to Justine, this comment had gone viral, receiving national attention, while she was still mid-flight with no Internet access. A prime example of how social media can create momentum around public opinion with very little effort and little to no time to respond. Later in the afternoon, with hours to go before she landed, another corporate communications representative for IAC issued a statement that tried to address the online controversy. "This is an outrageous, offensive comment that does not reflect the views and values of IAC," the company said. "Unfortunately, the employee in question is unreachable on an international flight, but this is a very serious matter and we are taking appropriate action." Some people found the mob mentality of her very public persecution more offensive than the actual tweet itself. But this situation is more common than not it seems these days. Unfortunately for Justine, because of her position in the company, she forced IAC to distance themselves quickly to prevent association to the inappropriate comments. IAC’s full statement read as follows: “The offensive comment does not reflect the views and values of IAC. We take this issue very seriously, and we have parted ways with the employee in question. There is no excuse for the hateful statements that have been made and we condemn them unequivocally. We hope, however, that time and action, and the forgiving human spirit, will not result in the wholesale condemnation of an individual who we have otherwise known to be a decent person at core.” This was a clear cut case of defamation but, even still, her removal was handled following strict guidelines to ensure it was done properly.

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Conclusion It is evident that social media is here to stay. And the laws governing the use of social media in the workplace are in constant development. In 2012, the Governor of California signed Assembly Bill No. 1844 that offered further provisions around what constitutes “social media” and the restrictions of its use to obtain personal information by an employer. SECTION 1. Chapter 2.5 (commencing with Section 980) is added to Part 3 of Division 2 of the Labor Code, to read: CHAPTER 2.5. Employer Use of Social Media 980. (a) As used in this chapter, “social media” means an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations. (b) An employer shall not require or request an employee or applicant for employment to do any of the following: (1) Disclose a username or password for the purpose of accessing personal social media. (2) Access personal social media in the presence of the employer. (3) Divulge any personal social media, except as provided in subdivision (c). (c) Nothing in this section shall affect an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation

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of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding. (d) Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device. (e) An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.

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References Greenhouse, S. (2010, October 8). Company Accused of Firing over Facebook Post. . Retrieved June 20, 2014, from http://www.nytimes.com/2010/11/09/business/
Bercovici, J. (2013, December 23). Justine Sacco and the Self-Inflicted Perils of Twitter. . Retrieved June 20, 2014, from http://www.forbes.com/sites/jeffbercovici/2013/12/23/justine-sacco-andtheself-inflicted-perils-of-twitter/ Social Media. (n.d.). In Wikipedia. Retrieved July 14, 2014, from http://en.wikipedia.org/wiki/Social_media
Miller, B. (2014, April 25). Should Employees Use Social Media at Work?. . Retrieved July 5, 2014, from http://hrdailyadvisor.blr.com/2014/04/25/should-employees-use-social-media-at-work/# SmartTable: How is Social Media Changing HR?. (2013, August 30). . Retrieved July 10, 2014, from http://www.smartrecruiters.com/blog/smarttable-how-is-social-media-changing-hr/

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