Dan Schwartz Interview on LexBlog 
August 1, 2013
Instagram and Vine Present Risks for Employers, 
But They Must be Cautious Policing Workplace Use
Mr. O’Keefe:	Colin O’Keefe checking in for LXBN TV.  Fueled by platforms like Instagram and Vine, social photos and videos have become quite popular though when they’re taken in the workplace, they have the potential to get employees and their employers in quite a bit of trouble.  However, when employers try to protect themselves, their hands may be slightly tied.  Joining me now to discuss the matter is Daniel Schwartz.  He’s now a partner with Shipman & Goodwin and he is author on the always great Connecticut Employment Law Blog.  Dan, you’ve been on this topic from the get go.  Why are social photos and videos so troublesome for employers?  What have you been seeing, you know, in your own exploration of this area?
Atty. Schwartz:	Well it was funny, you know, when Twitter’s social media app Vine came out a few months ago, I started taking a look and seeing what was on there and I really got troubled by the amount of employees who were taking pictures of themselves and videos of themselves at work and then using hashtags like work sucks or hate work, and once I started exploring this space, it really became apparent to me that this is the new Wild West.  I think people now understand some of the parameters within Facebook but it seems that any new technology being used has this sort of learning process going on.  So now you have Vine which is Twitter’s popular app and you also have Instagram which is Facebook’s app, and it also now does video.  You put the two together, you add in mobile phones that people have and it’s just creating a recipe for problems.
Mr. O'Keefe:	Absolutely.  It’s my understanding that the National Labor Relations Board has taken some issue with employers’ attempts to prevent their employees from taking photos and videos in the workplace.  So how can employers protect themselves while still working within the rules?
Atty. Schwartz:	You know, and that’s interesting Colin because you wouldn’t necessarily have suspected that the NLRB would take interest in photos at the workplace, what’s the natural interest there, but yet their concern is really that employers don’t overstep the bounds and prohibit employees from engaging in what is called protected concerted activity.  That’s really activity that’s designed to further their wages and it’s been a big hot topic for social media now for a few years.  I think with photos and videos being taken in the workplace much more frequently, the NLRB has said we’re not going to allow necessarily blanket prohibitions on these types of things, we’ll allow some reasonable restrictions where employers may have legitimate business interests such as protecting confidential information, trade secrets, or in the healthcare industry protected health information, but the policy needs to be (1) narrowly tailored and (2) the employer can’t overreact just because a picture is taken.  You’ve obviously seen some examples recently of employees misbehaving at work.  That behavior is still not going to be protected from the NLRB but what we’re really talking about is employees who may be pointing out unsafe working conditions or using it to document being in some ways a whistleblower.  For all of those things I think employers are wise to seek their legal counsel and not act too quickly without understanding that there are some rules that are coming out in this area.
Mr. O'Keefe:	Definitely.  I don’t know if you saw this but I know Golden Corral recently was in the headlines a bit as an employee of theirs was posting photos of their less than stellar working conditions so I’d assume that’s something that the NLRB would want to protect and this, I mean things like that they just make this space a really interesting area to watch.
Atty. Schwartz:	Thank you Colin.  Yes, it’s a new area and get out your cell phones and play around with the tools because they can be useful but used incorrectly it really opens up a whole new area we haven’t seen before.
Mr. O'Keefe:	Absolutely.  Again, it’s an interesting area to watch and if you, the viewer out there is interested in reading more about the intersection of employment law and social media, be sure to visit Dan’s blog.  It is at ctemploymentlawblog.com.  He is a new partner, just this week at Shipman & Goodwin, so Dan congratulations there and of course, if you’re not watching us here on LXBN, be sure to visit LXBN.com for more of these interviews and curated commentary from the LexBlog network’s more than 8,000 members.  Thank you for talking with us today Dan.
Atty. Schwartz:	Thank you Colin.  Take care.