Workshop A From Employees to Product Promotions: How to Tackle Social Media
23rd Annual Labor and Employment Relations Law Seminar Thursday, May 12, 2011 Workshop A From Employees to Product Promotions: How to Tackle Social Media Amy D. Hartwig 414.225.4973 [email protected] Lori S. Meddings 414.277.3464 [email protected] This presentation is intended for general information purposes only and does not constitute legal advice. Specific questions and requests for legal advice should be addressed to legal counsel. © 2011 Michael Best & Friedrich LLP What is Social Media? Personal Networking MySpace Facebook Business Networking LinkedIn Video Sharing YouTube Blogging Personal Sites Twitter (Micro-blogging) © 2011 Michael Best & Friedrich LLP 2 Social Media Is No Longer a Kid’s Tool The 50 Million User Mark It took radio 38 years It took TV 13 years It took the Internet 4 years The Facebook 100 Million User Mark It took Facebook 9 months to reach 100 million users 40 35 30 25 20 15 10 5 0 Years ra di o © 2011 Michael Best & Friedrich LLP TV i e nt rn et F e ac bo ok 3 Over 50MM tweets per day … © 2011 Michael Best & Friedrich LLP 4 Overview of Social Media Benefits Word of Mouth marketing through UGC. Fosters brand loyalty and credibility. Responsive Customer Service/Feedback. Allows for quick responses in responding to Negative Publicity, Crises. Promotions and Contests. Corporate Social Responsibility spread the word about community outreach or other initiatives. Limitless Potential. Lessens advertising spend. © 2011 Michael Best & Friedrich LLP 5 Social Media as a Marketing Tool Twitter, Facebook and other sites allow users to link their website to an account using certain widgets or buttons, such as those shown at right. Widgets can also be displayed on a company website to facilitate users posting content from the company site through the user’s Twitter, Facebook or other account. © 2011 Michael Best & Friedrich LLP 6 © 2011 Michael Best & Friedrich LLP 7 Preventive IP Strategies Facebook hosts over 1.6 million Pages with over 5.3 billion Fans. Establish a “Page” (as opposed to an individual account). Users become “Fans”; can post comments, view news and information about business or its products/services. Register unique handle: e.g. facebook.com/lori.meddings to facilitate users looking for your Page. Creator of Page must be an official representative of the organization, business, celebrity or brand. © 2011 Michael Best & Friedrich LLP 8 Preventive IP Strategies Twitter Establish Twitter Profile/Account. Select Username that is as close to the business or brand name as possible (usernames are issued on a first-comefirst-serve basis). PepsiCo uses @PepsiCo for the Company’s tweets, and @Pepsi for the brand. Use the company logo as the account profile picture. Link to Twitter profile from an associated website to confirm identity to followers. Clearly identify the company and brand in the Profile, and state “Official Account” in Profile. © 2011 Michael Best & Friedrich LLP 9 Monitor Third Party Activity Search key brands on social media websites periodically. Develop a policy for addressing accounts and content that: Infringes Impersonates Disparages Misleads © 2011 Michael Best & Friedrich LLP 10 Twitter Terms of Use What is a Trademark Policy Violation on Twitter? Using a company or business name, logo, or other trademark-protected materials in a manner that may mislead or confuse others with regard to its brand or business affiliation may be considered a trademark policy violation. How Does Twitter Respond To Reported Trademark Policy Violations? When we receive reports of trademark policy violations from holders of federal or international trademark registrations, we review the account and may take the following actions: When there is a clear intent to mislead others through the unauthorized use of a trademark, Twitter will suspend the account and notify the account holder. When we determine that an account appears to be confusing users, but is not purposefully passing itself off as the trademarked good or service, we give the account holder an opportunity to clear up any potential confusion. We may also release a username for the trademark holder's active use. What Is not a Trademark Policy Violation? Using another's trademark in a way that has nothing to do with the product or service for which the trademark was granted is not a violation of Twitter's trademark policy. Twitter usernames are provided on a first-come, first-served basis and may not be reserved. For information on why you may not be able to select a certain username, please see our Why Can't I Register Certain Usernames help page. Use of a trademark in connection with a fan account, as long as the fan account is clearly operated as such. © 2011 Michael Best & Friedrich LLP 11 Twitter Trademark Policy Claim What Information is Required When Reporting Trademark Policy Violations? In order to investigate trademark policy violations, please provide all of the following information: Your company name: Your Company Twitter account (if there is one): Company website: Your trademarked word, symbol, etc. (e.g. Twitter) Trademark registration number: Trademark registration office (e.g. USPTO): Note: A federal or international trademark registration number is required. If the name you are reporting is not a registered mark (e.g., a government agency or non-profit organization) please let us know. Your first and last name: Title: Address: Phone: Fax: Email (must be from company domain): Description of confusion: (e.g. passing off as your company, including specific descriptions of content or behavior): Requested Action (e.g., removal of violating account or transfer or trademarked username to an existing company account): © 2011 Michael Best & Friedrich LLP 12 Facebook Terms of Use We respect other people's rights, and expect you to do the same. You will not post content or take any action on Facebook that infringes or violates someone else's rights or otherwise violates the law. We can remove any content or information you post on Facebook if we believe that it violates this Statement. We will provide you with tools to help you protect your intellectual property rights. To learn more, visit our How to Report Claims of Intellectual Property Infringement page. If we remove your content for infringing someone else's copyright, and you believe we removed it by mistake, we will provide you with an opportunity to appeal. If you repeatedly infringe other people's intellectual property rights, we will disable your account when appropriate. You will not use our copyrights or trademarks (including Facebook, the Facebook and F Logos, FB, Face, Poke, Wall and 32665), or any confusingly similar marks, without our written permission. If you collect information from users, you will: obtain their consent, make it clear you (and not Facebook) are the one collecting their information, and post a privacy policy explaining what information you collect and how you will use it. You will not post anyone's identification documents or sensitive financial information on Facebook. You will not tag users or send email invitations to non-users without their consent. © 2011 Michael Best & Friedrich LLP 13 Facebook IP Complaint Policy How to Report Claims of Intellectual Property Infringement Facebook is committed to protecting the intellectual property of third parties. On this page, rights holders will find information regarding how to report copyright and other intellectual property infringements by users posting content on our website, and answers to some frequently asked questions regarding our policies. If you are a user concerned about the removal of your content, you may file a counter-notice. You can do so through the email notification you received, or in the warning at the top of your home page. How to report other claims of intellectual property infringement by users If you wish to report other claims of intellectual property infringement (i.e. non-copyright) by a Facebook user, all you need to do is fill out our automated IP infringement form. © 2011 Michael Best & Friedrich LLP 14 Facebook – Notice of IP Infringement Claim Name: Mailing Address: Telephone: E-Mail: (Note that we routinely provide your contact information to the user that posted the content you are reporting) What are the rights infringed? Are you the owner of such rights or a person legally authorized to act on behalf of the owner? Where does the infringing content appear on the Facebook site? Please include the URLs. How does the content infringe your rights? By submitting this notice, you declare under penalty of perjury that all of the information contained in this notice is accurate and that the use of your intellectual property described above, in the manner you have complained of, is not authorized by the rights owner, its agent, or the law. © 2011 Michael Best & Friedrich LLP 15 Contests & Promotions Social Media contests & promotions are quick and easy to roll-out, but make sure they comply with laws and regulations. In addition, Facebook has very specific rules for contests offered via the Facebook platform: http://www.facebook.com/promotions_guidelines.php © 2011 Michael Best & Friedrich LLP 16 Facebook Contests – Do’s and Don’ts You cannot: Condition entry in the promotion upon a user providing content on Facebook, such as posting on a Wall of a Page, uploading a photo, or posting a status update. You can: Use a third party application to condition entry to the promotion upon a user providing content to the application. For example, you may administer a photo contest whereby a user uploads a photo to a third-party application to enter the contest. You cannot: Administer a promotion that users automatically enter by liking your Page, checking in to your Place or connecting to your Platform integration. You can: Require entrants to like your Page, check in to your Place or connect to your Platform integration before they provide their full entry information, such as name and contact information. You cannot: Notify winners through Facebook, such as through Facebook messages, chat, or posts on profiles or Pages. You can: Collect an email or address through the third-party application for the promotion in order to contact the winner by email or standard mail. You cannot: Instruct people (in the rules or elsewhere) to sign up for a Facebook account before they enter the promotion. You can: Instruct users to visit the third-party application to enter the promotion (as described in Section 2.3.2.1). Since users must have a Facebook account in order to access an application on the Facebook Platform, if you give this instruction, they will be prompted to sign up for a Facebook account if they do not already have one. © 2011 Michael Best & Friedrich LLP 17 CAN-SPAM ACT and Social Media CAN-SPAM Act, 15 U.S.C. 7704(a)(1), prohibits: “transmission, to a protected computer, of a commercial electronic mail message, or a transaction or relationship message, that contains, or is accompanied by, header information that is materially false or misleading.” In Facebook, Inc. v. MaxBounty, Inc., MaxBounty filed a motion to dismiss which the court denied. In its decision on the motion, the court noted that “electronic mail messages” includes messages sent through Facebook via wall postings and other transmissions. © 2011 Michael Best & Friedrich LLP 18 FTC Revised Guides Beware: the FTC’s Revised Guides Concerning the Use of Endorsements and Testimonials in Advertising Guidelines apply in the social media context. © 2011 Michael Best & Friedrich LLP 19 FTC Revised Guidelines Companies must ensure that when anyone “speaks” on behalf of the company on any Social Media platform, endorsers must: Disclose identity, and any other relevant affiliations from the very first encounter. Disclose any business/client relationship if communicating on behalf of a third party. Provide a means of communicating. Inform employees, agencies and brand advocates that a formal policy of disclosure exist (and take action quickly to correct problems where possible). © 2011 Michael Best & Friedrich LLP 20 Blogger Reviews: FTC Revised Guidelines Disclose connection between blogger and company. Never instruct the blogger regarding what to say in the review. Never ask to review or edit the review prior to posting. Can provide blogger approved product information sheets, but should not reflect the company's opinion or include prices. Company can be held liable for comments made by blogger. Never engage in “Astroturfing.” © 2011 Michael Best & Friedrich LLP 21 Key Takeaways: FTC Guidelines Disseminators: FTC Releases New Guidelines: Issued in December 2009. When disclosure required: Gift, “street team” employment, or any other form of endorsement. Outlined need for advertisers to establish training and monitoring programs for their use of social media. Liability: Bloggers and other social media users. Usually provided free products. Advertisers liable for endorser’s failure to disclose. Cannot rely on “remoteness” to social media or lack of control over endorsers. Best Practice: Written policy regarding disclosure and point-person/team to assure compliance. FTC notes it will exercise its “prosecutorial discretion” when advertisers have policy in place and it is followed. © 2011 Michael Best & Friedrich LLP 22 FTC Guidelines: Liability Created by Employees’ Use of Social Media The guidelines impose liability on endorsers and companies who fail to disclose “material connections” between an endorser and the company about whose products that endorser comments. An employee who uses social networking sites to make comments about a product made by his/her employer, and who fails to disclose his/her relationship with that manufacturer, may create legal liability under the FTC guidelines. Further, should a consumer rely on a particular comment in that posting to his/her detriment, any ensuing damage could be attributed to the manufacturer/company. © 2011 Michael Best & Friedrich LLP 23 FTC Guidelines: Liability Created by Employees’ Use of Social Media A clearly written, widely distributed, and consistently enforced social media policy can help to avoid liability. The policy should direct employees who discuss the Company’s product on social networking sites to: Clearly and conspicuously disclose that he/she is an employee of the Company. State that the views and opinions addressed are the employee’s alone and do not necessarily reflect that of his/her employer. The Commission has stated that in deciding whether to institute legal action it would “warrant consideration” whether a company has instituted policies and enforcement procedures concerning use of social media by employees. The Commission also stated that it is unaware of any instance in which an enforcement action was brought against a company for the actions of a single “rogue” employee who violates a company’s social media policy via an illegal endorsement. © 2011 Michael Best & Friedrich LLP 24 Other Concerns Created by Use of Social Media in Employment Context Pre-Employment Background Checks: When conducting background checks, employers: May rely on information pertaining to a job applicant obtained through social media if the information is publicly available (not password protected) and posted by the job applicant. Should never create an alias to gain access to information about a job applicant. Should also keep in mind that the information is not verified. Should consider only information that relates to the applicant’s ability to perform the job and that could have been elicited legally during an interview. © 2011 Michael Best & Friedrich LLP 25 Other Concerns Created by Use of Social Media in Employment Context Employment Discrimination/Harassment (federal/state laws). Applying social media policy or use in a discriminatory fashion. Selective “friending” by managers and supervisors. Posts by managers and supervisors. The employer using protected information that it discovered on social media sites adversely against the employee: Age, race, religious beliefs, etc. Genetic Informational Nondisclosure Act of 2008 (“GINA”). © 2011 Michael Best & Friedrich LLP 26 Other Concerns Created by Use of Social Media in Employment Context Genetic Information Nondiscrimination Act of 2008: Who must comply with GINA? What is Genetic Information? What does GINA prohibit? © 2011 Michael Best & Friedrich LLP 27 Other Concerns Created by Use of Social Media in Employment Context GINA (continued) EEOC’s final rule says that a “request” for genetic information may include actions such as “conducting an Internet search on an individual in a way that is likely to result in a covered entity obtaining genetic information . . .” There are 6 narrow exceptions, including: Where the information is acquired inadvertently. Asking how are you today and the applicant responds that his/her father just passed away from heart disease. When the information comes from sources that are commercially or publicly available, such as newspapers, books, magazines and electronic sources. When searching the Internet, and you inadvertently see the employee’s father’s obituary which states the father passed away from heart disease. © 2011 Michael Best & Friedrich LLP 28 Other Concerns Created by Use of Social Media in Employment Context Stored Communications Act (“SCA”). Provides a civil cause of action against any person or entity who: intentionally accesses without authorization a facility through which an electronic communication service is provided; or intentionally exceeds an authorization to access that facility; and thereby obtains, alters, or prevents authorized access to a wire or electronic communication while it is in electronic storage in such system. Coerced access does not equal authorization. MySpace chat group case. © 2011 Michael Best & Friedrich LLP 29 Concerns Created by Use of Social Media in Employment Context Fair Labor Standards Act (“FLSA”). What if a non-exempt inside sales representative uses social media to conduct work, develop client relationships, or blog about the benefits of the company’s products? Is this “work” for which the employee must be compensated? Even if the company did not request the sales representative to conduct these activities? © 2011 Michael Best & Friedrich LLP 30 Other Concerns Created by Employees’ Use of Social Media Disclosure of Confidential, Proprietary or Trade Secret Information. These are legitimate, protectable interests. A well thought out, widely disseminated and consistently enforced social media policy should: Prohibit the disclosure of the employer’s confidential, proprietary, or trade secret information; and Prohibit the disclosure of third party confidential, proprietary or trade secret information that the employer has agreed to protect from disclosure. © 2011 Michael Best & Friedrich LLP 31 Other Concerns Created by Employees’ Use of Social Media Defamation (also called slander (for spoken statements or reports) and libel (for written, broadcast, or otherwise published words). It is usually a requirement that this claim be false and that the publication is communicated to someone other than the person defamed. Most common law jurisdictions allow legal actions, civil and/or criminal, to deter various kinds of defamation. Employer could be liable for defamation by an employee, with real or apparent authority, who defames a customer or competitor. © 2011 Michael Best & Friedrich LLP 32 Other Concerns Created by Employees’ Use of Social Media Invasion of Privacy. Unreasonable intrusion upon privacy. Unreasonable disclosure of personal facts. An employee may invade the privacy of coworkers, customers or vendors. Prohibit the disclosure of confidential or personal information about coworkers, customers, and venders without their permission. © 2011 Michael Best & Friedrich LLP 33 Other Concerns Created by Employees’ Use of Social Media Employment Discrimination/Harassment: Comments, remarks, pictures, images on blogs that contribute to a hostile work environment: Title VII ADA ADEA PDA State Employment Discrimination Laws (e.g., sexual orientation, marital status, lawful use of lawful products off working premises). © 2011 Michael Best & Friedrich LLP 34 Disciplining Employees: Possible Pitfalls This picture was posted on Facebook. Was I really fired for having too much fun on vacation? © 2011 Michael Best & Friedrich LLP 35 Twitter gets you fired in 140 characters or less Duane Hoffmann / msnbc.com A little bird told your boss you think he sucks. © 2011 Michael Best & Friedrich LLP 36 Disciplining Employees: Possible Pitfalls Employment “at-will” or contract. Ability to discipline/terminate an employee for blogging depends on several factors: On or off company time. Connection between employee conduct and employer’s business interests. Just cause. Other contractual considerations. © 2011 Michael Best & Friedrich LLP 37 Disciplining Employees: Possible Pitfalls Remember Invasion of Privacy, GINA and SCA. First Amendment (public entities). © 2011 Michael Best & Friedrich LLP 38 Disciplining Employees: Possible Pitfalls National Labor Relations Act (“NLRA”). Protected and concerted activity. Unlawful surveillance. Union organizing. © 2011 Michael Best & Friedrich LLP 39 Disciplining Employees: Possible Pitfalls The American Medical Response of Connecticut Facebook Firing Charge Section 7 of the NLRA protects the rights of workers in both union and nonunion settings to communicate with each other about wages, hours and other terms and conditions of employment. The Hartford office of the NLRB alleged that AMR, an ambulance service, violated federal labor law by discharging an employee after she posted negative comments about her supervisor, and responded to further comments from her co-workers, from her home computer. The NLRB complaint also alleged that the company maintained overly-broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees. . . . © 2011 Michael Best & Friedrich LLP 40 Disciplining Employees: Possible Pitfalls The company’s social media policies challenged by the NLRB included one that bars employees from depicting the company “in any way” on Facebook or other social media sites in which they post pictures of themselves and another that prohibited employees “from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s supervisors, co-workers and/or competitors.” The parties settled the case in February 2011. The company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work. The company also agreed that it would not discipline or discharge employees for engaging in such discussions. © 2011 Michael Best & Friedrich LLP 41 Disciplining Employees: Possible Pitfalls Thomson Reuters Corp.’s Twitter Policy The New York office of the NLRB claimed Thomson Reuters Corp. improperly restricted an employee’s right to use Twitter to discuss working conditions with co-workers. In February 2010, a Reuters reporter sent a tweet to Reuters that said, “one way to make this the best place to work is to deal honestly with Guild members.” Reuters verbally disciplined her for the public tweet. The NLRB alleged that Reuters implemented an unlawful social media policy that chilled employees’ rights to discuss working conditions and applied the social media policy improperly to the reporter involved in this case. In late April, the parties resolved the matter without the NLRB issuing a complaint. © 2011 Michael Best & Friedrich LLP 42 Disciplining Employees: Possible Pitfalls December 2009 Advice Memorandum in Sears Holdings. Policy: disparaging the company’s “products, services, executive leadership, employees, strategy, and business prospects.” Not overboard: No evidence that policy used to discipline employees for protected activity; No evidence that implemented in response to Section 7 activity; and When read in context of the entire policy, no reasonable employee could conclude the nondisparagement provide to prohibit lawful Section 7 activity. © 2011 Michael Best & Friedrich LLP 43 Addressing Social Media in the Workplace Develop an effective workplace policy to address use of social media. Establish a policy that balances the company’s needs with the right of employees to discuss wages, hours, and working conditions. Establish employees’ responsibility for the purposeful or inadvertent disclosure of any confidential or proprietary company information or trade secrets. Establish employer’s right to freely view and monitor an employee’s unrestricted social media platform. Prohibit employees from making statements about your company, their coworkers, and your customers, competitors, agents, or partners that could be considered harassing, threatening, or defamatory (to the extent permitted by applicable law). © 2011 Michael Best & Friedrich LLP 44 Addressing Social Media in the Workplace Explain that anything posted on an employee’s website is subject to all other company policies, rules, regulations, and guidelines contained in the employee handbook or any other source. Require permission to post or reproduce any company logo, material, or trademarks. State that employees are subject to discipline, including being fired, for violating your policy to the extent permitted by applicable law. Prohibit the taking of photographs in the workplace. Include language related to professionalism, ethics and conflicts of interest. © 2011 Michael Best & Friedrich LLP 45 An Offense May Be Your Best Defense: A potential Cisco applicant tweeted this: “Cisco just offered me a job! Now I have to weigh the utility of a fatty paycheck against the daily commute to San Jose and hating the work”. Someone at Cisco saw the Tweet, and tweeted back: “Who is the hiring manager? I’m sure they would love to know that you will hate the work. We here at Cisco are versed in the web”. © 2011 Michael Best & Friedrich LLP 46 Questions? © 2011 Michael Best & Friedrich LLP 47
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