2012 Workplace Web, Social Media, and BYOD Policies Internet Summit

A 2012 presentation on workplace web, social media, and byod policies. I highlighted employee concerns, unauthorized access to email communications, and more.

1. Workplace Web, Social Media, and BYOD Policies Mudd Law Offices

2. Greetings from Charles Mudd “I look forward to seeing all of you in May at which time I can buy each of you a drink. Best wishes for the holidays.”

3. BYOD Policies What is BYOD? Bring Your Own Device………….as a practice probably quite old…. ..but as concept novel to employer policy concerns…

4. BYOD Policies: Recognize the Players Employee Concerns (PARAMOUNT) (and concerns of those parties related to the employee) Privacy (on the computer and through the camera) Use …and more

5. BYOD Policies: Recognize the Players Employer Concerns IP / Trade Secrets Systematic Integration … and more

6. BYOD Be Wary of Unauthorized Access to Email Communications CFAA ECPA SCA

7. Case Study City of Ontario, California, et al. v. Quon et al . 130 S. Ct. 2619 (2010)

8. Case Study: Ontario Because "some government offices may be so open to fellow employees or the public that no expectation of privacy is reasonable ,” " [t]he operational realities of the workplace” must be considered in order to determine whether an employee’s 4 th Amendment rights are implicated Next , where an employee has a legitimate privacy expectation, an employer's intrusion on that expectation "for noninvestigatory , work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances."

9. Case Study: Ontario Plurality Analysis Found No Violations…. …as did Scalia’s approach….

10. Case Study: Ontario Scalia approach " dispensed with an inquiry into 'operational realities' and would conclude 'that the offices of government employees . . . are covered by Fourth Amendment protections as a general matter .’” The core inquiry is whether the search would be "regarded as reasonable and normal in the private-employer context."

11. Case Study: Ontario Again, under Scalia approach, no violation by employer.

12. Ontario Implications on Policies Recognize Need for Written Policy Determine What Employer Wants ( eg BYOD or employer provided) Encourage Collaboration with Employees or Representatives Develop a Thorough and Encompassing Written Policy Practice the Established Written Policy (No Divergence) Audit Enforcement and Consistent Practice

13. Workplace Web: Policy Implications Use of Web on Employee Time Use of Web for Employment Purposes Employee Privacy Expectations Related (Virtual Worlds harkening back to prior presentation) Again, Collaboration with Employees Important

14. Social Media: Policy Thoughts Should be part of Broad Workplace Electronic Use Policy (the more policies, the more confusion) NLRB Concerns (Very important not to restrict concerted discussion on issues of workplace terms and conditions) Make Sure Exceptions from Permissible Behavior Explicit

15. Social Media: Client Concerns Employees shilling performance reviews for one another Employees embellishing job descriptions and work history e.g. the all too common “puffery”

16. Social Media: Beyond the Policy Employer Best Practices Do Not Ask For Passwords to Social Media Accounts Avoid Asking About Extra-Employment SM Accounts Make Sure All Employees Involved in Hiring Know

17. Social Media: Beyond the Policy Ownership of Accounts Determining who owns Social Media Accounts Social Media Assets (connections, contacts, followers)

18. Social Media: Case Study Eagle v. Morgan, et al., No. 11-4303, 2012 U.S. Dist. LEXIS 143614 (October 4, 2012) As With So Many Internet Issues, Judiciary Education Paramount

19. Mudd Law Offices Thank you!

20. Questions? More Information? Mark Petrolis * [email protected] Mudd Law Offices Chicago Office 3114 West Irving Park Road Chicago, Illinois Park City Office 311 Main Street Park City, Utah *admitted in Illinois

21. Happy Holidays Mudd Law Offices