Bussing bio 1
 
 
Heather Bussing (@heatherbussing), California employment lawyer discusses Social Media’s Real Legal Issues.  Ms. Bussing is a labor and employment law specialist with 25-years experience.
 
In this episode, she explains why social media policies are not the best way to manage what employees can and cannot say on social media, Section 7 of the NLRA which protects employee’s discussions regarding wages, hours and working conditions and why employers need to think through how it tried to regulate what employees say on social media.

Listen to the audio: (length 00:48:30)

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 Legal issues employers face as a result of social media in the workplace discussed in this interview:
 
  • Social Media Discrimination - Discrimination on Social Media with adverse employment impact that could lead to a hostile work environment. Issues concerning managers and employees such as age discrimination, settlements and awarded damages. Workplace discrimination suits cost employers start at $50 to $70 thousand in attorney fees, not including punitive damages, which can easily run in the six figures, and sometimes run into the millions.
  • Social Media Defamation - Libel in Social Media is considered shares that are untrue and unflattering. Libel does not have to cause damage, because they are inferred. If it’s negative and untrue, it could be libelous, slanderous and defamatory. Defamation is the overall category of unkind, untrue or unflattering statements. Slander is statements that are made verbally, or are published verbally and libel are statements that are made in writing. Generally, anything that is recorded in one-way of another would be considered libel.
  • Social Media Harassment - There are two types of legal harassment that could take place on social media.  The first is called quid pro quo, which is sleep with me and I’ll promote you and the second is a hostile work environment, which is harassment that is so pervasive that a reasonable person could not tolerate it and could not continue to perform under those conditions. Harassment could be based on any of the categories that are protected by civil rights and Equal Employment Opportunity Commission (EEOC) law such as age, national origin, religion, race/color, sex, sexual preference or disability.
  • Social Media and Personal Privacy - To circumvent personal privacy issues, employees should be trained on what type of information has to kept private by an employer such as medical and financial information or sexual orientation. But there are limitations. If there is a reasonable expectation of privacy, such as personal belongings being kept in a locked desk drawer, where the desk is owned by the employer, in certain states the employer may still have to give the employee notice before they unlocked that drawer.
  • Employee Privacy at Work – If the employer owns the hardware, the employers is entitled to see anything that it is used for or anything that’s on that. Privacy rights are very limited at work when an employee uses their employer’s hardware.
  • Requesting Employee Social Networking Passwords - Generally, an employer has the right the user names and passwords of an employee’s personal social media accounts if that employee uses company-owned hardware to access that social media account. In 2012, 5 states enacted legislation preventing employers from requesting passwords to personal Internet accounts to get or keep a job.  Legislation has been introduced or is pending in 35 US States, according the National Conference of State Legislatures. 
  • Social Media and Intellectual Property – Titles are not generally copyrighted but the content of the work itself usually is, a copyright is a particular set of words or images. You can’t copyright titles or ideas. But something that somebody else wrote, or an image created by someone else, is generally protected by copyright and cannot be used without permission unless you’ve paid for the right to use it, or are using an excerpt under the Fair Use Doctrine, which allows you to use a small excerpt for the purpose of review or discussion. “Small” is based on the percentage of the excerpt compared to the entire copyrighted work and which could be considered substantially less than the whole thing. Furthermore, the excerpt should include a link back to the entire copyrighted work at a web domain owned by the copyright holder.  Attribution is also key. While it labor intensive, copyright owners can submit take down notices, which Google provides visibility over on a quarter-by-quarter basis.
  • Social Media Jurisdiction - Federal law applies to all US employers and State law applies to where the employee works. A temporary vacation with the intent to return home as not enough to invoke jurisdiction in another state.  
  • Mitigating Risk through Social Media Policies - Reliance on social media policy is not enough to guarantee compliance. Policies don’t prevent people from acting out and doing stupid things, because policies are usually part of a large pile of paperwork distributed to new hires as part of the on boarding process and don’t get read. Employees don’t pay attention to policy. Policy alone is not enough.
  • Leaking Corporate Strategy with Location Based Social Networking - How services like Foursquare can compromise the confidentiality of a company’s strategy and what type of training employers should provide to employees to minimize misuse.
  •  FTC Disclosure Requirements - Legal disclosure requirements in place that employers must follow if they have use their employees to say good things about them on social media.
 
Reference Links:
 
Disclaimer:
This interview is for general informational purposes only and should NOT be considered legal advice.  Please refer any legal questions you may have to an attorney from your jurisdiction.