Non Profit Report - October 2010

Date: October 29, 2010

Social Media in the Workplace: Part 2
by Eileen Morgan Johnson

This is the second of two articles on the potential legal issues that can arise from the use and misuse of social media in the workplace. Part 1 covered the use of social media in the pre-employment setting. Part 2 covers the use of social media in employment and post-employment situations.

Social media is changing communications between employers and employees and among co-workers.

Employee communications
The employee newsletter is out and the company Facebook group is in. Employees of the 21st century want a different relationship with their employer and co-workers than that of prior generations. They are used to receiving information that is current and relevant to them, and they expect the same ability to preselect and customize the information they receive in the workplace. Employees want to be able to ask questions and provide feedback to management. With more employees teleworking or working from multiple locations, they want the ability to communicate with their co-workers. Today's workers like to create their own news in their personal lives and share it with others electronically, and they expect to be able to do the same with their work lives.

The International Association of Business Communicators Research Foundation & Bucks Consultants surveyed 1,500 employers in June 2009. An astonishing 97% of the employers said that they frequently use social media to communicate with their employees. Of these, 19% reported occasional use, with only 1% reporting that they used social media rarely or never. Whether by company emails, an intranet website, Facebook group or other tools, clearly social media have become critical to employer/employee communications.

Social media usage policies
Just as employers adopted internet and computer use policies in the 1990's, now they are developing social media usage policies. These policies can be part of the company's electronic communications usage policy or a stand alone policy. The key to an effective social media usage policy is frequent adaptation to new technologies and programs, new legal requirements related to both technology and the workplace, and communication with employees.

Distractions and productivity
Employers worry about lost employee productivity due to the distractions of social media in the workplace. The temptations to communicate with their friends and family members are everywhere. Text messaging, cell phones and instant messaging provide near instantaneous dialogue which can be more interesting than the daily work assignments. Twitter feeds and other alerts are used to notify blog followers when a new posting has been added. Younger workers are used to multitasking. They made their way through high school and college with laptops, iPods, and cell phones, and can write a paper, text a friend, and download music simultaneously while watching television and talking with friends. They want their work lives to function the same way their personal lives do with constant stimulation and communication.

Do employers have the right to force their employees to focus on the task at hand and not use social media while at work? The courts are still working that issue out, but at least one federal court has suggested that employers might have the right to prevent employees from accessing blogs while at work. Nickolas v. Fletcher, 2007 U.S. Dist. Lexis 23843 (E.D. Ky. 2007).

An employer might want to monitor its employees' online conduct while at work. The argument goes something like this: "The employee is on my time, in my facility, and using my computer equipment. Why shouldn't I be able to monitor what's going on?"

Any monitoring should be done with care. In Pietrylo v. Hillstone Restaurant Group, 2008 WL 6085437 (D.N.J. 2008), a Newark jury found that the employer violated the federal Stored Communications Act by secretly monitoring employees' postings on a private password-protected Internet chat room. This followed an earlier case, Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), where the court also held that secret monitoring by an employer of a password protected website visited by an employee while at work violated the federal Stored Communications Act.

However, earlier this year, the U.S. Supreme Court unanimously held that a public employer's review of an employee's text messages on an employer-issued device was a reasonable search under the Fourth Amendment. City of Ontario v. Quon, No. 08-1332, 560 U.S. ___ (2010). This case involved the use of a pager issued to the employee by the employer. The employer authorized a set number of text messages per month and allowed employees to pay for any overage. Employees were not prohibited from using the pager to send and receive personal text messages. The employer noticed that one employee had an excessive number of text messages and asked its service provider for copies of the text messages from that employee's phone. It found messages to the employee's wife and girlfriend. The employee claimed that his privacy had been violated. The lower court had held that the service provider violated the Stored Communications Act when it provided the employee's text messages to the employer. The Supreme Court reversed, holding that the employer had a right to see text messages sent and received on the employer's pager. While this case involved a public employer (and courts have typically allowed greater employer control of public employees), the court clearly stated that employees do not have an expectation of privacy when using equipment provided by the employer.

Other Worries
Employers have more serious potential issues than lost productivity to worry about. Social media tools present an easy method of accessing and communicating information. This can include the unauthorized disclosure of confidential information. While the concerns about unauthorized disclosure using social media tools are similar to unauthorized disclosure in more traditional ways, now the disclosure is at the click of a mouse to multiple recipients. Unauthorized disclosure can include the business plans and information of clients as well as those of the employer.

Unfortunately, social media tools can also be used to harass co-workers. What might be a harmless exchange of jokes or photos between friends can take on a new life when they are spread around the office. The seemingly innocent friend request on Facebook from a co-worker can take on new meaning. How does a female employee respond to a "friend" request from her male supervisor?

The technology behind social media presents another new challenge to employers, the inability to effectively respond to misinformation. A fleeting complaint lingers forever and can be accessed or rebroadcast by other employees or those outside of the company. Information remains in cyberspace indefinitely. The employer's response to misinformation or even a later retraction by the defaming party is unlikely to reach all who received the initial communication. Any communication issued by an employee is seemingly valid, even when the employee is a self-appointed company "spokesperson."

Employers might consider charging employees who misuse social media at the workplace with using company equipment inappropriately and follow appropriate disciplinary measures. The social media usage policy should provide for discipline for abuse of the policy and explicitly state that social media may not be used to violate other employer policies, including harassment and non-discrimination policies.

Internal investigations
In a June 2009 survey, Proofpoint asked US employers to report on internal investigations at their companies in the past 12 months. The results of the survey show that employers do have a reason to be concerned about leaks of confidential or proprietary information. Employers reported conducting investigations of leaks by:

  • Email - 43%
  • Blog or message board - 18%
  • Video - 18%
  • Facebook and LinkedIn - 17%
  • Twitter or SMS texts - 13%

The same employers also reported on the results of their investigations, with a substantial number finding violations of company policies. The rates of employees disciplined or terminated for policy violations were:

  • Email - 31% terminated
  • Blog or message board - 17% disciplined, 9% terminatedĀ 
  • Video - 15% disciplined, 8% terminated
  • Social networks - 8% terminated
  • Twitter/SMS texts - no reported actions

Employer responses
Employers can take a number of measures to reduce the problems that can arise from the use or misuse of social media. As a first step, employers should remind their employees that they have no expectation of privacy when using the employer's electronic equipment or network. This includes employer supplied smart phones, voice mail, and email. Next, employers should review and update as necessary their internet usage policies to include the use of social media and clearly state what employee actions will result in discipline or even termination.

To address the potential misuse of social media, a social media usage policy should prohibit the use of the employer's name by employees outside of official company communications. The policy also should discipline employees for posting any negative statements about the employer or any derogatory comments about the employee's co-workers or supervisors.

Whether it is two pizza parlor employees abusing food for their YouTube video or anonymous misstatements on a blog about a company's products or services, an employer's reputation can be easily and speedily damaged through the misuse of social media tools. Postings favoring the employer's competitors or slamming its customers, or, in the case of associations, its members, can also be detrimental and the intentional disclosure of confidential employer information can be devastating.

Employer social media policies should prohibit:

  • Disclosure of confidential employer information
  • Discrimination against or harassment of co-workers
  • Using the employer's trademarksĀ 
  • Infringing the intellectual property rights of others
  • Making statements adverse to the employer's business interests or reputation
  • Criticism of customers or business partners
  • Statements supporting competitors
  • Obscenity

Legal limitations
Multijurisdictional employers may face inconsistent laws when trying to establish uniform policies for their employees. Some states prohibit an employer from acting with respect to employee activity that is not related to the employer or is not on working time. In addition, there are laws that protect concerted activity by employees - the protected right of employees to discuss common issues related to the workplace (these are the laws protecting labor unions). There are also laws that protect complaints related to the violation of workplace laws such as state and federal whistleblower laws. However, employees do not have a right to engage in activity injurious to the employer that does not fall within these limited exceptions. Employers should consult with counsel before establishing policies or taking steps to address the misuse of social media by their employees.

Off- duty conduct
Employers can tread over the line when they attempt to discipline employees for their off-duty conduct. Many states have off-duty conduct laws that prohibit employers from basing employment decisions on legal activities of employees outside of work time. Employers need to be aware of the state laws applicable to each of the jurisdictions where their employees are located to avoid violating these laws.

Postings complaining about the employee's work, the employer, supervisors, or co-workers or postings critical of the employer's product or service can be grounds for disciplinary action up to and including termination. For example, a teacher who was fired for an inappropriate MySpace page sued the employer and lost in Spanierman v. Hughes, 576 F. Supp. 2d 292 (D. Conn. 2008). Even when the conduct does not rise to the level of disciplinary action, it can cause the employer to question the employee's maturity or judgment.

Former employees who left on their own or maintain a positive relationship with their former employer, supervisor and co-workers rarely raise concerns about the potential for harm to the employer through their online activities. However, the disgruntled former employee is a different story. Just as they are not concerned about the bridges they burn, these employees are not worried about the potential consequences of the statements they publish online or their tweets about their former employer, supervisor and even co-workers. The potential for a defamation claim against the former employee can be great. Alas, the opportunity to collect damages is not great.

Some employers have a real concern that confidential information will be released by disgruntled former employees. Requiring employees with access to confidential information, as a condition of employment, to sign a confidentiality and nondisclosure agreement which remains in effect following the termination of the employment relationship is one way to address this potential problem.

Social media non-compete
Employers who sanction employee blogs, Facebook groups, Twitter accounts, and other means of communicating through social media often do not think through the consequences of setting up these accounts with one employee as the face of the company. What happens when the employee who has been regularly posting blogs on behalf of the company decides to leave? Who owns the profile? Who owns the content? More importantly, who owns the followers? Even if the now former employee does not object to the employer taking over his blog, what if the employer does not have the login name and password?

To address these issues, savvy employers are having their employees sign social media non-competition agreements. Under these social media non-competes, the profile, content and followers of a blog or other communication tool belong to the employer. These agreements are more akin to a non-solicitation agreement than a traditional non-compete. They are difficult (if not impossible) to enforce but they clearly define the intent of the parties if the employer sees litigation (or alternative dispute resolution) as a necessary step to protect its brand or marketing position.

The now widespread use of social media in and outside of the workplace is not the end of the world as we know it. True, the situations employers can face are different, and small problems can very quickly magnify and multiply. But the sensible employer will respond appropriately, working with its employees to identify appropriate social media usage policies and exploiting the communication benefits that social media can bring to the workplace of the 21st century.

Enforcing Board Member Responsibilities
by Melanie Lockwood Herman

It's impossible to be too grateful to a member of a nonprofit board. Volunteer board members donate countless hours to the causes and organizations they love. And many of the tasks for which the board's attention is required seem distant from the compelling mission at the heart of the organization. Yet most board members willingly contribute the time and intellectual capacity the nonprofits they serve require.

The generous contributions of nonprofit board members make the ambitious missions and innovative programs of nonprofit organizations possible. Even when the talents and energies of individual board members differ, the contributions of a diverse board often come together in a mosaic of service and good governance.

From time to time, however, individual members of a nonprofit board may shirk from their responsibilities; or worse, board members may behave in a manner that is unbecoming or destructive. Many nonprofit leaders are surprised, if not stunned, to witness the damage that a "bad actor" on a board can cause. And when a nonprofit board includes more than one member behaving badly, the situation can quickly move from unhealthy to dire.

My colleague Eileen Morgan Johnson of Whiteford, Taylor and Preston, LLP has authored a humorous piece on dysfunctional board "characters" who often appear at nonprofit and association board meetings. An excerpt of her musings on the "cast of board characters" appears in the sidebar which begins on page 4. This lighthearted look at board roles is a helpful reminder about both the consequences of bad behavior and the need for action.

When board members fail to meet their responsibilities or behave badly the negative consequences include:

  • Discomfort. Although it may be obvious that "someone needs to do something," a period of discomfort and awkwardness will ensue and continue until that "something" gets done.
  • Resource and focus drain. In the wake of inappropriate action or misconduct the board's mission-driven focus will be diverted, if not drained. Instead of moving forward with ambitious plans for new programs and improved governance, energy must be redirected away from mission to getting the bad actor back on board or in a worst case scenario, off the board.
  • Collateral damage. The actions or inaction of bad actors may hasten the departure of effective board members. It is not unusual for one or more board members to become discouraged when they witness fellow board members behaving badly. Tolerance levels differ, and one or more members may decide they no longer have the patience and enthusiasm required for board service.

This short list of the damage that bad actors can cause is just a beginning. Damage assessments range from short-term "fixable" issues to lasting harm that is hard or impossible to repair. In all cases the solution is preventing bad behavior or poor performance wherever possible, and addressing it in a timely and effective manner when it occurs. In the paragraphs that follow we explore practical approaches to enforcing board member responsibilities.

Begin Before the Trouble Starts
The first lesson in enforcing board member responsibilities is to set the stage for accountable and appropriate board conduct. Countless board chairs and CEOs have learned the hard way that most board members do not have innate governance skills, nor are they able to intuitively understand the organization's culture, operating rules, and its expectations of board leaders. To get the board off on a solid footing:

  • Provide a board job description that clearly and plainly describes the expectations of board members. If board members are expected to raise funds, say so. If meeting attendance is required, be clear that this is the case. If questions to staff members must go through the executive director, describe the chain of command in explicit terms.
  • Schedule a board orientation and leadership training session. Many leaders report that board training is best received when the "messenger" is from the outside, rather than a peer who serves on the board or a senior staff member. Also, make certain that the messenger is equipped to talk about governance responsibilities in general (e.g., the duties of care, obedience and loyalty) as well as nuances pertaining to your nonprofit (e.g., the board's job description, the division of labor between the board and staff, implications of the organization's recent merger or expansion, etc.).
  • Provide coaching for the chair. The board chair is not simply a member of the board who sits at the head of the meeting table and "runs" the meeting. The chair position requires leadership ability, effective listening skills, and a stomach for tough issues, including disputes involving fellow board members. Consider ways to "position" your board chair for an effective term of service by providing the information, resources and support s/he will need to serve with distinction.
  • Establish a communications protocol. Choose methods that work for staying in touch with the board and make certain that newly elected members understand how to stay inside the communication loop. Board portals, password-protected board Web pages and email groups offer options, but they are only effective when used consistently.

Define and Reinforce Your Norms
While the word "unique" may be a bit extreme when describing a nonprofit board, every board has one or more elements of its organizational DNA that distinguish it from others. "Normal" practice at one board table may be unacceptable at another. To keep the peace and empower board members to perform, take the time to define and reinforce the "norms" for the board and the nonprofit. For example:

  • Develop a set of protocols for in-person and telephone meetings. What steps and techniques will you use to encourage candid participation, keep meetings on schedule, and prevent one or more members from sidetracking or sabotaging discussion? What do board members need to know to contribute effectively to meetings? When should members expect to receive background materials and how will they be transmitted (e.g., four days prior to the meeting delivered via email)?
  • Define the relationship between the board as a whole and its committees. Nonprofit board structures vary to a large degree, and your board members may find the structure that works for your organization to be unusual or confusing. For example, does the executive committee tackle key issues on a regular basis, or only when critical matters arise in between meetings? Is committee membership or participation at committee meetings open to all board members?
  • Explore ways to maximize board engagement and participation. While the leadership style of your chair will differ as the occupants of that position change, there are common practices that encourage or discourage engagement and active participation. For example, a chair who arrives at every board meeting with her mind made up and ?"ducks in a line" is likely to garner resentment by board members who see their involvement as limited to rubberstamping the chair's plans (see the description of "the Playwright" board member in the sidebar). This unfortunate leadership style can be countered by incorporating key discussion questions into the board agenda. Inviting the board to discuss "is this the right strategy?" before proceeding to vote on any important issue is one approach.

Anticipate Trouble and Plan Accordingly
Even the nicest group of dedicated volunteers will, on occasion, sail into troubled waters. Pretending that "it couldn't happen here" or looking up and away at the distant horizon will not keep the nonprofit and its board from drifting into the Bermuda Triangle. A better approach is to anticipate difficulty related to: (1) the inability or failure of board members to perform as required or requested; or (2) unacceptable conduct. Next, consider action that will be triggered if either form of drift occurs. For example:

  • Timely follow-up concerning minimum commitments. The Board Chair (or another board member tapped as the "enforcer") should act without delay to inform a board member when their participation is close to falling below the nonprofit's requirements. A phone call to the member who has missed successive meetings and is subject to automatic removal is a professional and appropriate form of intervention. The leader making the call should use the opportunity to solicit the absent member's feedback to determine whether absences are due to unavoidable schedule conflicts or another matter, such as the member's discomfort with discord between factions on the board. The twin purposes of the call are to gather information and determine a mutually agreeable path forward.
  • Board "interventions" to stop bad behavior before it escalates. The Board Chair should understand and appreciate the occasional need to point out inappropriate behavior and request compliance with the nonprofit's norms. The conversation between the chair (or the Governance Committee Chair or other designee) may involve reminding a member about the nonprofit's norms and protocols and identifying how the bad behavior is in conflict with the norms.
  • Disclosure and formal action. In a worst case scenario, the actions or behavior of one board member may need to be disclosed to the members of the executive committee or to the full board. An example would be when a board member is found to have violated the duty or loyalty. Consider the nonprofit whose board member compromised the organization's negotiating position with a third-party. When the matter was discussed with the board member at the executive committee level he expressed sincere regret and provided a credible explanation for the chain of events. The executive committee was able to close the matter in a timely fashion and the board member was invited and encouraged to remain.

Addressing inappropriate conduct or the failure to live up to commitments is often difficult, even for the most experienced chair or savvy board leader. Understanding that doing so is necessary to keep the nonprofit's compelling mission at the forefront may help ease the chair's reluctance to "get involved."

The chair should also recognize the importance of using the right tools for the job. Email is an "easy," but sometimes ineffective and inappropriate way of communicating. The old fashioned method of picking up the phone is preferable when conveying difficult information to a board member. Another example of using the right tool is the importance of sending the right emissary. In some cases it may be preferable to "send" or deploy a board member who is an ally of the bad actor rather than the chair.

While there are no magic bullets for ensuring that board members do as they promise and conform to your nonprofit's norms, there are practical steps that you can take at all stages of board service. Beginning long before trouble occurs, anticipating some of the difficulties that are common within nonprofit boards, and taking timely and appropriate action are essential elements of playing the game of governance with success in mind.

Attention Employers with DC Employees: Final Regulations for Accrued Sick and Safe Leave Act Issued
by Tiffany M. Releford

In November 2008, the District of Columbia enacted the Accrued Sick and Safe Leave Act of 2008 ("ASSLA" or the "Act"). In doing so, the District became the second of only two jurisdictions in the country to mandate paid sick and "safety" leave. Unfortunately, the new law resulted in more questions than answers. The District recently issued final regulations in an attempt to clarify the ASSLA.

What is required under ASSLA?
Under ASSLA, employers must provide paid sick leave to eligible employees for absences related to physical or mental illness, preventative medical care, caring for a family member, domestic violence, sexual abuse, or stalking. ASSLA also prohibits retaliation against an employee who opposes any practice made unlawful by the Act, files or attempts to file a complaint for violation of the Act, facilitates initiation of a proceeding under the Act, provides information or testimony in connection with an inquiry related to the Act, or uses leave in accordance with ASSLA.

Who is covered?
The final regulations define "employer" to include for-profit or not-for-profit firms, partnerships, proprietorships, limited liability companies, associations, corporations, the District of Columbia or the any receiver or trustee of such entity or individual, including the legal representative of a deceived [deceased?] individual, who employs an employee.. Before the final regulations were enacted, there was some confusion as to who was an employee under ASSLA. The term "employee" is defined as "an individual who has been employed by the same employer for at least one (1) year without a break in service except for regular holiday, sick, or personal leave granted by the employer and who has worked at least one thousand (1,000) hours of service with such employer during the previous 12-month period." The final regulations provided clarification regarding employees employed in more than one location. To be covered under ASSLA, an "employee" who is employed by an employer in more than one location must spend more than fifty (50) percent of his or her working time for the employer in the District. However, independent contractors, students, certain health care workers, and restaurant wait staff and bartenders who work for wages and tips are not considered "employees" under ASSLA.

How are sick and safe leave determined?
Under ASSLA, the amount of sick leave to be provided by an employer depends on the number of employees. An employer with one hundred or more employees in D.C. shall provide each employee not less than one hour of paid leave for each thirty-seven hours worked, not to exceed seven days of paid leave per calendar year. An employer with 25 to 99 employees in D.C. must provide each employee with not less than one hour paid leave for every 43 hours worked, not to exceed five days of paid leave per calendar year. Lastly, an employer with 24 or fewer employees in D.C. shall provide not less than one hour of paid leave for every 87 hours worked, not to exceed three days of paid leave per calendar year. An employee begins to accrue paid leave on the date the employee meets the definition of an "employee" under ASSLA.

Can employees carry over unused leave accrued under ASSLA?
Under ASSLA, an employee may carry over unused paid leave accrued in one calendar year. However, the employee is not permitted to use more paid leave in one year than the maximum amount of sick leave the employee accrues in a year under ASSLA, unless the employer has a policy that provides otherwise. In addition, an employer is not required to reimburse an employee for unused accumulated sick leave upon the employee's discharge or resignation.

What is required of employers and employees under ASSLA?
ASSLA imposes notice requirements on employers and employees. For example, an employer is required to post notices regarding ASSLA in conspicuous places. Moreover, employers must maintain records of the accrual, granting and denial of ASSLA leave for a period of three years.

Similarly, an employee is expected to give at least ten days written notice of the employee's intent to use sick or safe leave. ASSLA includes alternative methods for employees to provide their employers notice, such as an oral request, when an employee may not be able to provide ten days' notice of the employee's intent to use sick or safe leave. An employer may require "reasonable certification" to support an employee's request for paid leave for three or more consecutive days. Such certification may inclu