By Elise M. Bloom and Michelle A. Annese1
"Follow us on
Twitter!" "Like us on Facebook!" These phrases have become a common part of
our everyday lexicon. However, the
social media explosion is not limited to our personal lives, but rather is
making its way into the workplace, as employees not only access these sites on
or off duty, but use them as a forum to discuss their employers, their
employers' businesses, and to search for new employment opportunities. In a similar vein, employers themselves
access sites to review candidate and employee profiles, reach customers, to
monitor chatter and direct discussion about their products and services, and to
promote their products and services.
While social media applications provide an array of benefits to both
employers and employees in the fashion industry, they facilitate the blurring
of barriers between work and personal life.
This article will explore the challenges posed by social media
applications in the workplace and effective measures employers may take to
harness the virtual water cooler.
Social Media & the Increased Possibility of Liability
generation of new employees and potential employers has grown up using social
networking applications and blogs and posting what many would consider
extremely personal information in a public forum. Consequently, employees using these sites at
work or to discuss work may not be fully aware of the legal and business
ramifications that posting to such sites can have in the workplace.
risks posed to an employer are great. Besides
the obvious issue of non-productivity, employers must recognize the legal risks
presented. Discrimination and harassment
may occur on social networking sites, thereby subjecting employers to legal
liability based on a respondeat superior
theory for comments made by their employees.
Courts have found that a hostile work environment may be created in an
online forum. For example, the New
Jersey Supreme Court, in Blakey v.
Continental Airlines,2 held
that Continental Airlines was liable for derogatory comments about a female
pilot posted on an electronic bulletin by other pilots.
state and federal laws mandate that employers keep confidential certain
employee information. Employees may,
however, post sensitive information online, resulting in an employee's loss of
privacy, employee discord, and potential liability for the employer.
dissemination by employees of trade secrets and proprietary and/or confidential
information also poses a significant threat.
For instance, employees may engage in unrestricted posting of
information about new products or customer lists. Such conduct may result in liability, including
potential securities law liability.
by employees also subject an employer to potential liability where the comments
about the company, its products, or services are inaccurate. Such liability is likely to turn on a theory
of respondeat superior, with a court
evaluating whether the posting occurred within the scope of employment, whether
the employee intended to benefit the employer, and whether the employer knew or
should have known about the posting.
Use of Social Media as a Recruitment Tool
media applications for recruiting and connecting with applicants, interns, and
employees is difficult to resist because these applications provide a unique
source of information not otherwise available on these individuals and some of
which an employer would never request during an interview. For example, an individual's Facebook profile
may contain demographic data, information on the individual's health conditions
and political beliefs, as well as suggestive photographs posted by the
individual or other Facebook members.
Some sites, like Twitter, allow individuals to post minute-by-minute
accounts of their daily lives.
employers must remain cognizant of the fact that the use of such information in
evaluating applicants or employees could result in violations of a range of
antidiscrimination and statutes, including Title VII of the Civil Rights Act of
1964, the Age Discrimination in Employment Act of 1967, and the Americans with
Disabilities Act. Employers who screen
these sites may provide rejected applicants or employees subjected to adverse
employment actions with a basis for alleging that the adverse decision was
taken due to a protected characteristic that was visible through the site. Even if proving that the employer relied on a
protected characteristic in making such a decision is difficult, an admission
that the employer screened these sites and came across such protected
information may nevertheless make it easier for a plaintiff's claim to survive
summary judgment and ensnare the employer in costly litigation.
Wage & Hour Issues Presented by Social Media Applications
be aware that posting or blogging by employees regarding the company or its
products and services may lead to potential exposure under the Fair Labor
Standards Act, 29 U.S.C. § 201 et seq. ("FLSA") and similar state wage and
hour laws. While the FLSA does not
define "work," a broad meaning has emerged from Supreme Court cases, which
describe work as exertion or loss of an employee's time that is: (1) controlled
or required by an employer, (2) pursued necessarily and primarily for the
employer's benefit, and (3) if performed outside the scheduled work time, an
integral and indispensable part of the employee's principal activities.
blogging by employees, especially where unauthorized or explicitly prohibited
by written policy, seem unlikely to fall within the definition of "work." Nonetheless, uncertainty remains as to how
courts will address this issue.3
Recent Cases in the Fashion Industry
On March 23,
2011, several former American Apparel employees and a prospective employee
filed a lawsuit against American Apparel and its founder and CEO, Dov Charney
in the Superior Court of California, County of Los Angeles, alleging, among
other things, sexual harassment, intentional infliction of emotional distress,
and assault and battery. Among the
allegations in the Complaint were that Mr. Charney sent sexually inappropriate
text messages to and sexually assaulted one of the plaintiffs. On April 26, two of those plaintiffs, along
with another former American Apparel employee who previously filed a sexual
harassment lawsuit against Mr. Charney on March 4, 2011 in New York State
Supreme Court, Kings County, filed a third lawsuit against American Apparel and
Mr. Charney. The plaintiffs in the April
26 lawsuit allege that following the filing of their initial lawsuits, fake
blogs claiming to have been created by them appeared online and some of the
blogs featured "nude or semi-nude pictures" of two of the plaintiffs. The second lawsuit asserts claims for
invasion of privacy, online impersonation, and defamation, as well as
intentional infliction of emotional distress.
March 29, 2011, Patrice Lataillade, the former CFO of Marc Jacobs International
LLC ("Marc Jacobs"), filed an action in New York state court against Marc
Jacobs, Louis Vuitton Moet Hennessy Inc., and Robert Duffy, President of Marc
Jacobs, alleging claims of sex discrimination and retaliation under New York State
and City Human Rights Laws. Among the
allegations in the Complaint was that Mr. Duffy created a hostile work
environment by using a photograph of a nude man on Twitter.
Necessary Steps to Harness the Virtual Water Cooler
aforementioned cases illustrate, every employer should develop a comprehensive
social media strategy tailored to meet their own individual needs, but that
provides employees with guidance regarding what is and is not acceptable. The written policy should explicitly address
blogging and other Web 2.0 technologies and should be distributed to all
employees. A well-crafted policy
should, among other things, address the use of company resources to access
social media applications and whether such use is permitted or prohibited; reserve
employer discretion to monitor employee activity; clearly state prohibited
conduct and warn employees of disciplinary measures that accompany policy
violations; and require that employees put up disclaimers when posting in a
personal capacity. The policy should
prohibit employees from using company logos, graphics, or photos without
written permission of the company and should require employees to obtain
express authorization to blog or post in their roles as company
representatives. Employers should also
update the policy regularly to account for developing technologies.
should also be developed regarding hiring and screening procedures that make
use of Web 2.0 applications. A "wall"
should be constructed between the ultimate decisionmaker and the individual
conducting the initial online search.
Any irrelevant information should be screened and filtered well before
it reaches the decisionmaker.
1 Elise M. Bloom is a senior partner and co-Chair of
the Labor & Employment Law Department of Proskauer Rose LLP. She is also co-Chair of the Firm's Class
& Collective Action practice group.
Michelle A. Annese is an associate in the Labor & Employment Law
Department of Proskauer Rose LLP.
2 164 N.J.
38 (2000) [enhanced version available to lexis.com subscribers].
3 In Chao v. Gotham Registry, Inc., 514 F.3d
280 (2d Cir. 2008) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law],
the Second Circuit held that the FLSA required an employer to pay overtime
compensation to employees performing overtime work even where the work was not
authorized and was in violation of company policy because the employer had not
adopted all possible measures to prevent work it does not wish performed. Id. at 286. The court, however, placed special emphasis
on the fact that the type of work performed during regular hours was the same
type of work performed after hours. Id.
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