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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:

Act 37: Permitting Hawaii Nonprofit Boards to Take Actions by Ballot and Electronic Voting, Use of Electronic Notice, and Conduct of Meeting by Teleconference

Business Impact: The purpose of Act 37 is really to modernize the way Hawaii nonprofit corporation boards operate and handle their affairs.  Basically, it allows nonprofit directors to use electronic communications technology to permit member actions by ballot, conduct voting, provide notice, and conduct meetings.

Specifics of the Law:  This new law amends parts of Chapter 414D of the Hawaii Revised Statutes, the Hawaii Nonprofit Corporations Act.  Specifically, the law adds in language that allows nonprofit board to take action through the use of electronic means.  Therefore, the law is permitting the use of email, fax, teleconferencing to make a lot of the formalities necessary to carry on a nonprofit corporation easier and at the discretion of the board.

Our Nonprofit Board has been Doing this Already does that Mean Our Past Decisions were Prohibited?

Probably not, as it was noted the way the law was written prior to this change did not specifically prohibit the use of communication technologies.  However, it was the wishes of the Hawaii State Government to provide some clarity and give assurances to nonprofit corporations that if they choose to operate in this manner than they are conforming to the law.  The only past acts that may be prohibited by your Board is if you did not comply with your own bylaws or did something that was a direct conflict of interest with the goals of the nonprofit.

However, every situation is unique and if you have concerns with the use of electronic communications in your board meetings, notices, or the conduct of balloting and voting you should seek an attorney for review and advice.

Reasonable Measures to Verify a Person’s Identity

Even with the new changes the fact that you can use electronic means to communicate should make your life easier, but the only caveat is that within the law it states that “[t]he corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of the Internet, teleconference, or other electronic transmission technology is a member or proxy of a member.”

Basically, only authorized people are allowed to vote and make decisions, and that would be the board of directors and officers.  If your nonprofit uses unreliable or unsecure methods of communication it would be difficult to say you took reasonable steps to verify a person’s identity when conducting a meeting.

Bottom line:  The changes in this law are meant to help nonprofit boards, especially ones with members across the islands, do their business with the security and ease of using electronic communication. However, with that being said you probably want to make sure your bylaws, articles of incorporation, and procedures are up-to-date and the way you conduct yourselves is legal.  Also you probably want to check your bylaws and make sure they do not prohibit specific types of technologies, as some types of nonprofits wanted to keep that face-to-face interaction required of meetings in the past.  Lastly, your notices and ballot measures are not simplified just because you are using email.  There are certain requirements that still need to be followed.  The means are easier, but the goal is to keep the substance the same.

Next law to be covered: For your coffee people to New Law in the Brief will be focusing on Act 49, which is meant to restrict the use of terms indicating geographic origin of Hawaii-grown coffee on coffee packaging.

*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.

Act 34: Protecting Gender Expression or Identity in the Workplace

Business Impact: Act 34 prohibits discrimination on the basis of gender identity or expression as a matter of public policy, specifically with regards to employment.  Basically, if you or the work environment you foster is insensitive to gender expression or identity of your employees, you may face enforcement action by the Hawaii Civil Rights Commission for discriminatory practices.  Discriminating against an employee expressing their preferred gender would be the same as discriminating against women, handicapped persons, or people of a certain race.

Specifics of the Law:  This new law amends two parts of Hawaii law, Section 368 and 378.  By amending Section 368, the law gives the Hawaii Civil Rights Commission (HCRC) the enforcement power over gender identity or expression discrimination cases.  In addition, by amending Section 378, the law aims to prevent discrimination in the workplace by making gender expression and identity a protected status similar to other categories, such as disability, race, age, and sexual orientation.

What Does “Gender Identity or Expression” Mean?

As you may already know the State already protects sexual orientation from discrimination.  You may think that sufficiently covers what is known as “gender identity or expression.”  However, that is not necessarily the case.

Sexual orientation is only describing one’s preference based on the gender of the partner.  In terms of gender expression and identity, a transgender person can have any sexual orientation.  Basically, the gender status is not the same as one sexual preference.  Gender identity is one’ internal feelings of being male or female or along those lines.  Gender expression represents all of the social and behavioral characteristics associated with femaleness or maleness.

Example

Consider a male truck driver wishing to make the transition to female.  Their appearance at work continues to be more and more feminine.  Other workers, due to the change, harass the transitioning worker.  The truck driver comes to you to discuss the harassment and gender transition.  If you suspend them for this action, then you would likely  face a visit from the HCRC for discriminating against your employee’s gender expression and identity.

Bottom line:  Is your company’s policies and procedures equipped to handle this change in the law?  Does your handbook reflect the changes?  Consider the following situations for reasonable accommodation or to prevent bias in the workplace:

  • Restrooms
  • Self-identification papers, check cards, etc . . .
  • Housing and facilities like locker/dress rooms
  • Dress code

There may be other situations that you may need to safeguard from gender expression or identity discrimination.  You should consider a legal review of your work policies, procedures, and handbooks.

Next law to be covered: Act 37, allowing non-profits to take actions by ballot and electronic voting, use of electronic notice, and conduct of meeting by teleconference. 

*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.

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