Tag Archives: social media

Giving up your password when looking for a job?

Should your potential employer require you to give up your password to Twitter? Facebook? LinkedIn? Will your comments, background information, age, nationality, pictures be used against you?

What if the employer does not use that information, but still has access to it?  Would that raise a concern that it was in fact used against a job applicant?  Allowing the requirement of social media passwords bring potential liability issues to employers.

Minnesota Lawyer (subscription required) has a very interesting article.   The Minnesota proposed bill, introduced by Rep. Mary Franson (R-Alexandria) seeks to ban employers from asking job applicants for their social media passwords as part of the job interview.  It is important to note, as stated by the article, that the bill does not discuss already hired employees and the use of employer laptops, computers, smartphones, etc.

Pending legislation in Minnesota includes H.F. 293, H.F. 611, S.F. 484, and S.F. 596.  All of these bills seek to ban employers fro requiring social network passwords as a condition of employment.

The National Conference of State Legislation reports that there are at least 29 states with introduced or pending legislation seeking to ban employers from requiring/asking for these social media passwords.

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Judicial Ethics and Social Media

On February 21, 2013, the American Bar Association released a formal opinion (#462) regarding judicial ethics in the social media context.  The ABA concluded,

A judge may participate in electronic social networking, but as with all social relationships and contacts, a judge must comply with relevant provisions of the Code of Judicial Conduct and avoid any conduct that would undermine the judge’s independence, integrity, or impartiality, or create an appearance of impartiality.

So what does this mean?

Electronic Social Media and the Judicial Independence, impartiality, and integrity

The ABA recognized that social networking is a part of worldwide culture and that electronic social media interactions might be beneficial to judges in order to prevent them from being thought of as isolated or out of touch.

So how should judges then behave in this electronic environment?  Given the oath and importance of promoting public confidence in the independence, integrity, and impartiality,” the judge must be sensitive to the appearance of relationships with others.

It is important to understand that relations over the internet are difficult to manage because messages may be taken out of context, misinterpreted, or relayed incorrectly.

In other words, judges must assume that comments, images, or profile information, as well as any other information, might be publicly revealed without the judge’s permission.

In addition, judges should not form relationships with persons or organizations that might be violative of Judicial Ethics because these relationships convey that the individuals or organizations are in a position to influence the judge.

Furthermore, there might be disclosure or disqualification concerns regarding judges when the sites that were “friended” or “liked” which are used by lawyers or others who may appear before the judge.  The context is important here when assessing the judge’s relationship to attorneys or others who may appear before them.

Electronic Social Media and Election Campaigns

In the ABA Model Code (which may be adopted as a whole or in part by states), a judge or judicial candidate may engage in political or campaign activity with certain enumerated exceptions.

Of great importance is that judges and judicial candidates must “be free and appear to be free from political influence and political pressure.” ABA Model Rule 4.1 [1].

Similarly of equal importance, the judge or judicial candidate is prohibited from personally soliciting or accepting campaign contributions other than through a campaign committee.  ABA Model Rule 4.1(A)(8); see also ABA Model Rule 4.4.  In the Model Rules, the method of communication is not addressed or restricted.

In addition, judges and judicial candidates are prohibited from “publicly endorsing or opposing a candidate for any public office.” ABA Model Rule 4.1(A)(3).  This means that judges or judicial candidates should be aware that by “liking” or becoming a “fan” of, or by “sharing” messages, photos, or other content, this Model Rule might be violated.

In sum, judges and judicial candidates can use social media but must be aware of the potential pitfalls that might arise. These might arise from “friending,” “liking,” “sharing,” being a “fan” of, and posting comments, photos, or other information that might be distributed.  It is also important for judges and judicial candidates to be aware that any information on the Internet might be distributed by others and made public with or without their consent.

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NLRB Clarifies Social Media Case Analysis

I mentioned this case before in a prior post.  Nevertheless, it warrants a follow up post dealing specifically with this case: Hispanic United of Buffalo.

In Hispanic United of Buffalo,the NLRB clarified the analysis for Facebook and other social media cases.

The facts are fairly typical for the increasing number of Facebook cases.  One employee had been complaining about the performance of co-workers and informed one of them that she was going to report her criticisms to the boss.  The co-worker posted a message on her Facebook page noting the criticism, saying she had “about had it,” and asking her fellow co-workers how they felt.  Four of them posted a defense of their work on the Facebook page, all while off-duty and on their own computers.  The employer fired all five for bullying the critical employee on Facebook.

All three Board members (Block, Griffin, and Hayes) agreed that the usual analysis for Section 8(a)(1) terminations–Meyers Industries–is applicable.  There wasn’t much discussion on this point, which is not surprising, as there is really nothing special about using social media other than it’s newer and cooler than more traditional forms of communication.  This essentially confirms what the General Counsel and many commentators (including yours truly) has been saying for a while, but it’s obviously a lot more helpful for the Board to make that clear.

via Workplace Prof Blog: NLRB Clarifies Social Media Case Analysis.

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NLRB recent decisions

This is the list of the most recent and significant decisions decided by the NLRB:

Hispanics United of BuffaloThe Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.

Alan Ritchey, Inc. – In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.

Latino Express In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.

Chicago Mathematics & Science Academy – Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.

United Nurses & Allied Professionals (Kent Hospital) – The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.

WKYC-TV, Gannet Co. Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented.

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The Sedona Conference Publishes Primer on Social Media

This post is geared towards lawyers and individuals working with electronic discovery (or anyone interested in discovery in a lawsuit of social media).

The Sedona Conference just published a Primer on Social Media.  The current version is open for public comments.  The purpose of the Primer is to provide primary instruction to the bar and the bench.

via The Sedona Conference® Publishes Primer on Social Media (Pubic Comment Version) : Electronic Discovery Law.

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What NOT to include in your social media policy

HR.BLR has a good list to keep in mind when drafting your social media policy.  Please read this very carefully.

Social Media Policies: What NOT To Do

When creating your social media policies, here’s what NOT to do:

  • Don’t screen applicants on social media and/or ask for passwords to such sites. “Increasingly [such practices] will be prohibited by both federal and state law,” Scott explained. Additionally, screening on social media opens the risk for discrimination claims based on protected class status that may be discovered in social media postings.
  • “Don’t adopt social media policies which are overbroad, or which unreasonably chill the exercise of protected concerted activity rights under the NLRA.” Scott continued.
  • Don’t fire or discipline employees for social media content without first reviewing with counsel to ensure you are not crossing the line. Remember that the line is moving quickly as technology changes!
  • Don’t use third-party apps that are overbroad in their access to applicant and employee information.
  • Don’t refuse to hire applicants (or fire or discipline employees) based on information culled from social media without checking with experienced legal counsel.

Social Media Policies: What TO Do

Here are some “dos” for social media policies

  • Create a current, effective and enforceable social media policy.
  • Instruct employees not to use vulgar, obscene, threatening, intimidating or harassing language; attack people based on protected status (e.g., union status or activity, disability, national origin, etc.); disparage company products and services; or disclose confidential or proprietary company information.
  • Create a companion privacy policy, establishing guidelines to prevent the disclosure of confidential employee or company information. Confidential employee information may include things such as home addresses, birthdays, employee personal data (including medical data), and protected status information. Company proprietary information could be financial, trade secrets, or other business information deemed confidential. (These lists contain examples, but are not comprehensive.)
  • Train employees about social media policies.
  • “Use a non-decision-maker to filter the contents of the social media page” if you do use social media as part of applicant screening, Semler advised. This is so you don’t get charged with the knowledge of protected status.
  • Monitor ongoing legal developments and conform your practices to those changes. For example, monitor the constantly changing laws, regulations and rules established and implemented by federal and state legislatures, agencies and courts.

via What NOT to include in your social media policy.

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Facebook is collecting your data — 500 terabytes a day

With more than 950 million users, Facebook is collecting a lot of data. Every time you click a notification, visit a page, upload a photo, or check out a friend’s link, you’re generating data for the company to track. Multiply that by 950 million people, who spend on average more than 6.5 hours on the site every month, and you have a lot of information to deal with.

Here are some of the stats the company provided Wednesday to demonstrate just how big Facebook’s data really is:

  • 2.5 billion content items shared per day (status updates + wall posts + photos + videos + comments)
  • 2.7 billion Likes per day
  • 300 million photos uploaded per day
  • 100+ petabytes of disk space in one of FB’s largest Hadoop (HDFS) clusters
  • 105 terabytes of data scanned via Hive, Facebook’s Hadoop query language, every 30 minutes
  • 70,000 queries executed on these databases per day
  • 500+terabytes of new data ingested into the databases every day

“If you aren’t taking advantage of big data, then you don’t have big data, you have just a pile of data,” said Jay Parikh, VP of infrastructure at Facebook on Wednesday. “Everything is interesting to us.”

Parikh said the company is constantly trying to figure out how to better analyze and make sense of the data, including doing extensive A/B testing on all potential updates to the site, and making sure it responds in real time to user input.

“We’re growing fast, but everyone else is growing faster,” he said.

via Facebook is collecting your data — 500 terabytes a day — Data | GigaOM.

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Lawyers and Social Media

Wisconsin Lawyer (May 2012) has an interesting read regarding the use of social media by lawyers.  These are the excerpts that caught my eye:

8 “Don’ts” When Using Social Media

  1. Don’t talk about clients or their matters.
  2. Don’t talk to clients about their matters.
  3. Don’t run afoul of the marketing-related Rules of Professional Conduct.
  4. Don’t engage in the unauthorized practice of law.
  5. Don’t engage in conflicts of interest.
  6. Don’t give legal advice online.
  7. Don’t jeopardize your identity. Protect it.
  8. Don’t make the wrong “friends.”

Risks when using Social Media

When using social media specifically for client development or marketing, you should be aware of the following additional risks:

  • Inadvertently establishing a lawyer-client relationship;
  • Providing legal advice to a nonclient without checking for potential conflicts of interest;
  • Not having enough oversight about how the firm or lawyers in the firm are being held out to the public;
  • Making snap decisions on new client intake;
  • Violating rules prohibiting direct solicitation of prospective clients; and
  • Engaging in the unauthorized practice of law or practicing out of jurisdiction.

In a Web-based environment, confidentiality can be more easily compromised than it might be when working through more traditional communication methods. Adesso says, “There are many times when social media is not the best forum to use. Social media does not easily allow for confidential communications, and thus should not be used in conjunction with any kind of adverse communication or contact with opposing counsel. In addition, there are many channels of advertising that will reach certain clients in a way that will not work on social media. However, if social media is done properly, it can act as an excellent entree to the more sophisticated or traditional means of communicating the message.”

Confidentiality can be breached in a number of ways when operating in an electronic environment, including by:

  • Failing to back up or protect client information;
  • Leaving a computer on or unattended;
  • Failing to secure your wireless network;
  • Having inadequate security (antivirus software and a firewall);
  • Failing to remove metadata or password protect-sensitive email attachments;
  • Inadvertently using the auto-fill function when sending email;
  • Inadvertently disclosing privileged or confidential client information;
  • Disclosing information without a client’s informed consent; and
  • Failing to provide a client with an electronically stored file.
  • Engaging in ex parte communication;
  • Making deceptive requests to gather information;
  • Failing to advise clients of the risks inherent in using social networking sites;
  • Directly contacting an adverse party;
  • Leaving an electronic trail that might provide a roadmap for a legal malpractice claim; and
  • Not taking the time to ensure the legal advice you give is correct.

via Wisconsin Lawyer May 2012: Managing Risk: Lawyers and Social Media: What could possibly go wrong? | State Bar of Wisconsin.

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Ethics Opinion Warns Lawyers About Perils of Unintentional Juror Contact During Online Research

Lawyers may research potential and sitting jurors on Facebook and other social media sites, but communications with jurors should be avoided, according to a new ethics opinion.

The opinion by the New York City Bar Association’s Committee on Professional Ethics notes that it’s not always easy to discern whether a visit to a website will result in a communication.

The opinion says it is unethical for lawyers or those working on their behalf to make juror friend requests, a finding that is in accord with a recent opinion by New York County Lawyers’ Association. But the City Bar opinion sets out to address a broader issue: what constitutes a prohibited ex parte communication with a juror.

According to the opinion, the ban on communication is violated not only through friend requests, but also when the lawyer is aware that his or her review of the juror’s comments, pages or posts will be disclosed to the juror. In addition, a violation might occur even if the communication to the juror is inadvertent or unintended.

“In the social media context, due to the nature of the services, unintentional communications with a member of the jury venire or the jury pose a particular risk,” the opinion says. “For example, if an attorney views a juror’s social media page and the juror receives an automated message from the social media service that a potential contact has viewed her profile—even if the attorney has not requested the sending of that message or is entirely unaware of it—the attorney has arguably ‘communicated’ with the juror.”

Although the relevant rule appears to bar even inadvertent communication, the ethics committee takes no position on whether such a communication would in fact be a violation. “Rather, the committee believes it is incumbent upon the attorney to understand the functionality of any social media service she intends to use for juror research,” the opinion says. “If an attorney cannot ascertain the functionality of a website, the attorney must proceed with great caution in conducting research on that particular site, and should keep in mind the possibility that even an accidental, automated notice to the juror could be considered a violation.”

Any lawyer conducting online research who learns of juror misconduct is obligated to promptly notify the court, the opinion says. The bar’s 44th Street Blog has a summary.

via Ethics Opinion Warns Lawyers About Perils of Unintentional Juror Contact During Online Research – News – ABA Journal.

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New Md. Law May Be First in Country Banning Employers From Seeking Workers’ Social Media Passwords

In what could be the first such law in the country, Maryland has enacted a bill that would prohibit employers from demanding personal passwords to social media sites such as Facebook from job applicants and workers.

State lawmakers last week almost unanimously approved making such information private, in response to reports that a growing number of employers are seeking access to individuals’ personal social media accounts to gather information for job-related decision-making, Raycom News Network reports.

The bill will take effect as law after it is signed into law by the state governor, the Gazette reports.

The American Civil Liberties Union of Maryland favored the new measure. The state Chamber of Commerce opposed it.

While no one wants others to read private messages, the chamber had hoped lawmakers would recognize that there may be legitimate reason for employers to review social media sites, said lawyer and employment practitioner Elizabeth Torphy-Donzella of Shawe Rosenthal. Her Baltimore-based law firm represents the chamber.

Similar legislation is being pursued in California and Illinois and in Congress, the Baltimore Sun reports.

The Washington Post’s Capitol Business Blog says Michigan also is considering such a law.

via New Md. Law May Be First in Country Banning Employers From Seeking Workers’ Social Media Passwords – News – ABA Journal.

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