![FINRA’s Latest Guidance
Accessing Social Media Sites From Personal Devices
● Q14: May associated persons use personal communication devices and other
equipment, such as a smart phone or tablet computer, to access firm business
applications and perform business activity if the firm employs technology that
enables the firm to keep records and supervise the activity?
● A14: Yes. Firms may permit their associated persons to use any personal
communication device, whether it is owned by the associated person or the
firm, for business communications. Of course, the firm must be able to
retain, retrieve and supervise business communications regardless of
whether they are conducted from a device owned by the firm or by the
associated person.
. . . firms should have the ability to separate business and personal
communications, such as by requiring that the associated persons use a
separately identifiable [secure] application on the device for their business
communications. . . If the firm has the ability to separate business and
personal communications, and has adequate electronic communications
policies and procedures regarding usage, then the firm is not required to
supervise the personal emails made on these devices. Of course, firms
also are free to treat all communications made through the personal
communication device as business communications.
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![Breaking Up is Hard to Do:
From Dooce to the NLRB
● Dooced: Termination based on a blog posting; see www.dooce.com
(blog of woman who was fired after writing about employer on blog)
● NLRB v. American Medical Response Company, Case No. 34-CA-
12576 (Connecticut, 2011). Employee terminated for criticizing her
supervisor on Facebook in violation of policies. Important case
because it challenged both the firing decision AND the employer’s
policies. Case recently settled.
● NLRB v. Hispanics United of Buffalo (“HUB”), September 2, 2011.
First ruling by an NLRB Administrative Law Judge, ruled that HUB
violated the NLRA when it terminated five employees for criticizing a
sixth co-worker on Facebook
―It is irrelevant to this case that the [Facebook posters] were not trying
to change their working conditions and that they did not communicate
their concerns to HUB‖
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IICF Social Media 2.0 for Insurance Professionals
- 1. The Insurance Industry Charitable Foundation presents Social Media 2.0 for Insurance Professionals: Maximizing Opportunities & Mitigating Risks in Today’s Marketplace November 9, 2011 In partnership with Title Sponsor:
- 2. The Insurance Industry Charitable Foundation presents Questions: Twitter: #IICFSMF Email: [email protected] In partnership with Title Sponsor:
- 3. Social Media 2.0 for Insurance Professionals: Maximizing Opportunities & Mitigating Risks in Today’s Marketplace “Agents Using Social Media for Customer Education & Service” Peter van Aartrijk, Managing Director Aartrijk
- 4. AGENTS ON SOCIAL NETWORKS FOR CUSTOMER EDUCATION & SERVICE By Peter van Aartrijk IICF Seminar, San Francisco November 9, 2011 ENHANCING YOUR BRAND FROM EVERY ANGLE
- 5. Agents Say Social Media Use Important, But… 71% say it’s important to use social media…Half said “critical” or “very important” to use. But usage only 44%. 61% expected to be in 2011. 2011 Survey of Agent/Carrier Relationships © 2011 Channel Harvest Research. All rights reserved.
- 6. • Listening to customers to learn and improve. • Understanding today’s meaning AGENCY ISSUES of service. • Working in vs. on the business. • Attracting new generations. • Seeing marketing as an expense vs. an investment.
- 7. WHY DOES BRAND MATTER?
- 9. Without a strong brand… The firm is just a name, a sign, a commodity.
- 10. • Trust BRAND ELEMENTS • Quality CUSTOMERS SEEK • Education • Time
- 23. personal business financial support learning about us blog insurance insurance insurance center center > STORM CLAIMS: Our Bolton & Harvard offices are closed due to the storm. BUT...Our team is here to advise you, file claims and assist you as quickly as possible. Call 800 222 8711. personal insurance insights blogs Watch for Motorcycles! Be Alert Hurricane emergency storm planning Avoid a rejection sticker Trick or Treat...Be Safe! for old MA License Plates Does your auto insurance policy 10 Tips for “What to do at cover a rental car while traveling? an Accident Scene” Older green MA license plates must meet standards for legibility 5 Tips for Better Value on and reflectivity in order to pass the Your Car Insurance business insurance annual vehicle safety inspection. Do you really know what Avoid the stress of getting rejected you have in your house? Developing a small business disaster recovery plan and last minute arrangements to Tips for creating a home get new plates. There is no cost to inventory Cyber Thieves Target Small Firms swap plates. contact us > Building an effective Do I need business interruption insurance employee performance review process simple solutions to protect families & businesses in massachusetts...insurance made simple. Data breach: Are you protected? Flood Insurance: Hurricane & Storm Claims Q&A - Part 3 Sewer Back-up & Sump Overflow: Hurricane & Storm Claims Q&A - Part 2 secure mail login news & events forms center join email list contact us Fallen Trees: Hurricane & Storm Claims Q&A - Part 1 get a quote auto insurance liability insurance life insurance locations Five Insurance Lessons submit a claim home insurance commercial auto disability insurance your opinion matters connect„The Town‟ from with us... update your account personal umbrella insurance group health insurance privacy & security pay my bill recreational vehicles workers’ comp fixed annuities terms & conditions bonds long-term care site map employee benefits Copyright (c) 2011 Murphy Insurance Agency Login
- 24. From: Murphy Insurance Agency <[email protected]> Sender: Murphy Insurance Agency <[email protected]> Date: Mon, 23 May 2011 12:36:15 -0400 (EDT) To: <[email protected]> ReplyTo: [email protected] Subject: Help Your Favorite Charity Win $200 From Murphy Insurance Having trouble viewing this email? Click here Murphy Insurance cares about the communities we call home and wants to give back by donating to 3 local organizations. We'd like your help in determing which ones to give to. Nominating and voting for your favorite local charity or community organization is easy... Visit & "Like" our facebook page facebook.com/murphyinsurance Click on the "contest" tab, on the left, and complete the nomination form. Deadline is June 8, 2011 Return to our page between June 9 and June 26, 2011 to vote for your favorite charity. Ask your friends to LEARN MORE vote, too! personal insurance For more information about the contest you can go to our website dfmurphy.com/donationcontestspring2011 business insurance financial insurance join email list 5% (89 67(. (,
- 29. ―Find the Pain, Heal the Pain, Show the Love.‖
- 37. Risk Management
- 43. November 5, 2011 Blogs Choose Your Industry Area of Interest
- 44. Share Report Abuse Next Blog» Create Blog Sign In Friday, April 30, 2010 Environmental Insurance, it's not off the shelf. About Me There is no such thing as an “off the shelf” environmental insurance Senn Dunn Insurance policy. Let a team of environmental insurance specialists help you. At Senn Dunn we want to be your trusted advisor 365 days a year. We have assembled a team of experts with industry We want to know more about your business than any of our specific experience, to assist you in the day competitors. When we sit down in front of you, you will see that to day dealings of your risk management. not only do we know what we are talking about, but we also know It's more than just an insurance policy, we what you’re talking about. Our tremendous depth and breadth of want to be your strategic resource 365 days environmental expertise means that our solutions for your business a year. are customized and seamless...no matter what issues you face. To speak to an advisor today give us a call at 1.800.598.7161, or visit us online at We have a proven reputation in the environmental insurance www.senndunn.com marketplace and strong relationships with environmental insurers. View my complete profile This market strength is increased by the fact that we talk with these environmental carriers on a daily basis. Our experience and ability to be innovative within the industry gives us an advantage About Us providing solutions that can have a positive impact on your bottom line. Don’t rely on luck. Let our expertise and relationships work to About Us your benefit. Our History Our Services Contact Us Team Expertise & Experience • dedicated environmental practice group Followers • 10+ years of working with environmental risks • evaluation of environmental exposures Join this site • specialized placement of environmental coverages with Google Friend Connect • development of strategic environmental risk plans • OSHA compliance training • bonds/surety There are no members yet. Be the first! We provide insurance solutions for: contractors pollution liability Already a member? Sign in environmental professionals liability closure/post closure liability cost cap remediation liability transportation pollution liability Blog Archive site specifi c pollution liability ! 2010 (3) products pollution liability ! April (3)
- 45. Share Report Abuse Next Blog» Create Blog Sign In Thursday, January 27, 2011 Why should I use a blog? Senn Dunn Commercial Insurance Senn Dunn Commercial Insurance Senn Dunn Home Senn Dunn Followers Join this site with Google Friend Connect There are no members yet. Be the first! Already a member? Sign in Posted by Senn Dunn Insurance at 11:22 AM 0 comments Blog Archive Links to this post ! 2011 (1) ! January (1) Why should I use a blog? Wednesday, February 17, 2010 " 2010 (2) Tips on how to manage Subcontractor Default Risk About Me Senn Dunn Insurance At Senn Dunn we want to be your trusted advisor 365 days a year. We have assembled a team of experts with industry specific experience, to assist you in the day to day dealings of your risk management. It's more than just an insurance policy, we want to be your strategic resource 365 days a year.
- 46. • Social media mentions. • Blog comments. • Followers, friends, views. • Phone calls, website clicks. METRICS • Delivered and opened e-mails. • Click-throughs from campaigns. • Quotes. • Referrals. • Recruitment efforts.
- 47. ENHANCING YOUR BRAND FROM EVERY ANGLE 703.912.7974 [email protected] Aartrijk.com
- 48. Social Media 2.0 for Insurance Professionals: Maximizing Opportunities & Mitigating Risks in Today’s Marketplace “Social Media, Mobile Computing and the Cloud: Why you need a current & comprehensive compliance policy.” Margaret Keane, Partner, Co- Chair, Employment Dispute Resolution Dewey & LeBoeuf
- 49. Social Media, Mobile Computing and The Cloud: Why You Need a Current and Comprehensive Compliance Program Presentation to Insurance Industry Charitable Foundation November 9, 2011 Margaret A. Keane 415 951 1137 [email protected] Dewey & LeBoeuf LLP dl.com
- 50. TABLE OF CONTENTS A. Issues Specific to the Insurance Sector 1. Use of Social Media by Farmers and some of its Competitors 2. Insurance Regulators and Social Media 3. The NAIC’s draft White Paper on Social Media in Insurance 4. From the States: Social Media as Advertising and Other Perils 5. Social Media as an Investigative Tool 6. Pointers, Perils and the FTC B. Workplace Issues 1. Overview of Challenges 2. Hiring Concerns 3. Perils and Pitfalls of Mobile Technology 4. FINRA Guidance on Dual Use Devices 5. The NLRA, Non-disparagement Policies and Termination 6. Genetic Information Non-Discrimination Act 7. Parting Thoughts Dewey & LeBoeuf LLP | 50
- 51. The Risks and Rewards of Social Media Run Throughout Your Relationships ● Claims ● Community Relations ● Customers ● Employees ● Insurance Regulators ● Other Regulators and Enforcers ● Producers ● Underwriters Dewey & LeBoeuf LLP | 51
- 52. Perils of Social Media and Mobile Computing ● Misappropriation of sensitive information due to negligent or intentional security breach ● Reputational damage ● Harassment or bullying of co-workers in social media fora ● Inappropriate and/or defamatory references posted on public sites ● Claims of discriminatory hiring and firing decisions based on information obtained from social media ● Violations of Genetic Information Non-Discriminatory Act (GINA) ● Wrongful termination claims for decisions and policies that may violate the National Labor Relations Act ● Unfair insurance/trade practices exposure for inappropriate or unauthorized endorsements and testimonials Dewey & LeBoeuf LLP | 52
- 53. Farmers Insurance Group • Offers Zynga’s FarmVille players access to its Farmers-branded Airship, which raised fan base by more than 100,000 in the first week of the promotion. • Ran a Facebook Contest where People could Enter to Win a Ride on the Farmers Airship, the Zeppelin Eureka. • Incorporated Hearsay Social, a social media platform designed to address compliance needs, deliver content and provide data analytics; uses the platform to help 15,000 agents nationwide maintain their own Facebook pages. • Launched iClaim which provides an additional channel to submit claims and communicate with Farmers. • Manages active Facebook, LinkedIn and Twitter Profiles. Dewey & LeBoeuf LLP | 53
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- 55. State Farm ● Launched a free mobile application, Driver Feedback, which can turn a cell phone into a pocket-sized driving coach. ● Held a 6-month ad campaign within the game Car Town that included branded missions, virtual item giveaways, and new State Farm-branded promotions. ● Launched State Farm Go to Bat - Users select one of the designated charities on State Farm’s website, then virtually swing. Once a week, for 10 weeks, State Farm will make a donation of $18,000 to the charity with the highest Go To Bat game batting average. Also, an individual winner who goes to bat for the winning charity will be randomly selected for a trip to Games 3 and 4 of the 2011 World Series. Dewey & LeBoeuf LLP | 55
- 56. Progressive ● Launched Snapshot, which plugs into a car's on-board diagnostic port. Computer chips collect and store the time of day the car is operating, as well as speed. The data are sent to Progressive via wireless technology, and users can view their results almost instantly on a website. Drivers can get discounts of up to 30% in as soon as 30 days. ● Launched mobile application to compare insurance costs; obtain quotes, make payments and manage policies; access insurance information, VINs, policy dates, insurance coverages, and find nearest agents and service centers. ● Progressive Flo, a character in Progressive’s commercials, has a Facebook Page with approximately 3,000,000 likes. Dewey & LeBoeuf LLP | 56
- 57. Allstate ● Launched Digital Locker which makes it easy to create and manage an inventory of personal property, so customers will have the information they need if they ever need to make a claim. ● Launched Tag In by Allstate which allows users to send quick messages and GPS locations to friends. ● Launched Allstate Motor Club, which provides roadside assistance for users nationwide. ● Launched GoodRide by Allstate – helps users plan, track and share all rides, maintenance, and repairs. ● Has its own YouTube channel which includes a section of information and educational videos. Dewey & LeBoeuf LLP | 57
- 58. Regulators Are Stepping In ● State insurance regulators beginning to address the use of social media in the insurance industry and treating it as advertising. – Several state insurance regulators have Facebook pages. – At least 3 states—Virginia, Massachusetts and New York—have provided specific guidance that marketing communications through social media platforms will be considered advertisements. – At least 6 states—Ohio, New Hampshire, Idaho, Colorado, Arizona, and California—and the NAIC include electronic communications, broadcasting, or transmissions within their definitions of advertisement. – NAIC has a Social Media Working Group, chaired by Keith Nyhan of New Hampshire Department of Insurance. Draft Working Paper on Social Media issued on July 29, 2011. Dewey & LeBoeuf LLP | 58
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- 62. NAIC Released Draft White Paper on Use of Social Media in Insurance ● The Social Media Working Group’s White Paper, which borrows heavily from FINRA’s Notice to Members 10-06, has not yet been adopted by the Market Regulation & Consumer Affairs Committee. However, it prescribes methods for insurers to comply with regulatory guidance in their use of social media, and may foreshadow future regulations. ● The White Paper focused on: – The use of social media in the business of insurance – Identifying and providing guidance on actual and potential regulatory and compliance issues with the use of social media in insurance Dewey & LeBoeuf LLP | 62
- 63. Context: Common Uses of Social Media in the Insurance Sector Insurers ● Tool to build trust and engagement and convey valuable information for consumers. ● Means to obtain and verify information during the hiring process. ● Forensic tool to investigate potential fraud in the underwriting and claims process. ● Facilitate claims handling. ● Method of more timely addressing public relations crises. Producers ● Ability to disseminate information. Can be product info or general public service. ● Tool to access networking opportunities. ● Means to engage customers and build personal brand, provide rapid responses to questions. Consumers ● Learn about products and rates, ask questions, rate insurance companies and producers, and complain about negative experiences with companies/producers. Dewey & LeBoeuf LLP | 63
- 64. NAIC White Paper: When is an Insurer Responsible? ―Generally speaking, if the social media communications can be attributed to a carrier, regulators will do so. Thus, protocols and procedures should be developed, in place, and followed regarding social media usage by independent agents, as the regulatory emphasis in regards to social media will be on the ―agency‖ and not the ―independence‖. Dewey & LeBoeuf LLP | 64
- 65. White Paper: When is an Insurer Responsible for Content? ● Insurers will likely be held accountable for social media content posted to or on any of their own directly sponsored sites, and possibly for their producer’s social media content. ● An insurer will likely be held accountable for all social media content, with limited exceptions, posted to/on any of its associated entities’ sponsored sites/spaces ● Static communications are subject to existing advertising, marketing and customer- relation regulatory frameworks. (Static communications remain posted and visible until changed by someone with access to do so. Ex. Biographic materials, backgrounds and wall information.) ● Retention and record keeping requirements do apply to the interactive content on a social media website controlled by an insurer or one of its associated entities. ● Insurers are not responsible for the interactive content of 3rd party, non-associated entities’ contributions ● If 3rd party content is attributable to an insurer because the insurer was involved with the preparation of the content, the insurer will be accountable for the content, per the ―entanglement theory.‖ ● If 3rd party content is explicitly or implicitly endorsed by the insurer it becomes attributable to the insurer per the ―adoption theory.‖ Dewey & LeBoeuf LLP | 65
- 66. White Paper: The Many Facets of Compliance ● ―As with all forms of communication and interaction between insurance companies and their associated entities and consumers, the insurance company must supervise and monitor communication closely in order to comport with existing regulations.‖ ● Insurers should adopt comprehensive policies, procedures and controls that comply with relevant State regulatory guidelines, including: – Advertising and marketing laws and regulations – Consumer complaints – Endorsements of and to individuals and companies – Privacy Laws – Federal laws including HIPPA, Gramm-Leach-Bliley (―GLB‖), Children’s On-Line Privacy Protection Act (―COPPA‖), State privacy laws such as California’s Insurance Information and Privacy Protection Act (IIPPA) – Record Retention Requirements – Security Breach Notification Statutes – Supervision, Monitoring and Training – Suitability Requirements Dewey & LeBoeuf LLP | 66
- 67. White Paper: Regulatory Guidance ● Insurers should restrict producers from engaging in business communications on unsupervised social media sites. ● Absent policies and procedures to ensure regulatory compliance, producers should be prohibited from using social media to promote an insurer or its products. ● Insurers should adopt policies reasonably designed to ensure that electronic communications or communications attributed to them are accurate and timely, not misleading. ● With regard to recommendations for specific insurance products, insurers should ensure that its communications or communications attributable to it are suitable to all potential recipients. Alternatively, an insurer could prohibit interactive electronic recommendations for specific products. Dewey & LeBoeuf LLP | 67
- 68. White Paper: Regulatory Guidance (cont’d.) ● An insurer may employ risk-based principles to determine the extent to which the review of its electronic social media communications is necessary to properly supervise its business. – Insurers could adopt procedures that require pre-approval of some or all interactive electronic social media communications prior to posting. – Insurers could alternatively review communications post-use. ● Insurers should have record retention policies and procedures for social media communications, as well as appropriate privacy protections for social media communications. ● Insurers should train their producers in accordance with their developed policies and procedures to guide producers’ social media use (or risk liability for their misuse). Dewey & LeBoeuf LLP | 68
- 69. From the States: Social Media Considered Advertisements/Marketing Material ● In Virginia, advertisement in the context of life insurance and annuities includes websites and other Internet displays or communications, social media, or other forms of electronic communications. ● In Massachusetts, marketing or marketing material in the context of health benefit plans includes ―Social media sites including networking sites, blog postings and smartphone applications created by or for a Carrier, Insurance Producer or other entity for presentation to or use by the insurance buying public.‖ ● The use of a Linked-In profile page or a similar website for the promotion of insurance, insurers, or insurance agents or brokers constitutes an advertisement, announcement, or statement under New York Law. OGC Opinion No. 10-11-07 (dated November 22, 2010). Dewey & LeBoeuf LLP | 69
- 70. From the States: Electronic Communications Considered Advertisements ● Ohio, New Hampshire, Idaho, Colorado mirror the NAIC Model Laws’ definition of advertisement in the context of accident and health/sickness insurance - an advertisement shall include printed and published material, . . . web sites and other internet displays or communications, other forms of electronic communications, billboards and similar displays. Ohio Admin. Code 390-8-07; N.H. Code Admin. R. 2601.3; IDAPA 18.01.24 Section 010; 3 CCR 702 Reg. 4-2-3 Section 4. ● In California, in the workers compensation context, advertisements include any form of communication, in writing, photograph or picture, electronic broadcasting or transmission. Cal. Code Regs. tit. 8, Section 9820. ● Because insurers’ use of social media will be regulated akin to traditional insurance marketing or advertising, social media communications must comply with advertising and marketing laws and regulations, among others. Because electronic advertising transcends state boundaries, insurers must be aware of multi-state advertising laws. Dewey & LeBoeuf LLP | 70
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- 72. More Regulatory Pitfalls ● An insured may attempt to submit a claim or complaint through an insurer’s Facebook page—insurers should consider including a disclaimer regarding the proper reporting of insured claims and a link to the insurer’s claim form and/or other contact information. ● The use of social media is subject to state insurance laws that govern unfair trade practices—insurers should be aware of applicable laws and take great care to follow their own privacy policies. ● As many states, including California, require that marketing be conducted in the insurer’s name, if an insurer is using a Twitter account, compliance professionals should ensure that the account name satisfies this requirement. Dewey & LeBoeuf LLP | 72
- 73. Romano v. Steelcase: Are Social Media Postings Discoverable in Personal Injury Cases? ● Injured woman sued furniture company for damages suffered when she fell off a Steelcase chair ● Steelcase sought her Facebook and MySpace postings to show that she had an active lifestyle and was not confined to bed as alleged. ● Court concluded that she had no expectation of privacy as to her Facebook and MySpace postings. ● ―Thus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites.‖ ● Same logic should apply in claims litigation, but case law is evolving. Dewey & LeBoeuf LLP | 73
- 74. Practice Pointers: Avoiding Regulatory Pitfalls ● Set clear expectations regarding online privacy when using corporate network ● Establish protocols for monitoring 3rd party posts and use disclosures that adequately inform users. ● Set policies ensuring that insurers are appropriately identifying, monitoring, responding to, tracking, and retaining records of complaints communicated through social media. ● Ensure that personnel communication on behalf of the company is licensed where necessary. Note that often, if an advertisement constitutes a solicitation in a particular state then the advertising-insurer must be licensed in said state. Dewey & LeBoeuf LLP | 74
- 75. Practice Pointers: Avoiding Regulatory Pitfalls (cont’d) ● Supervise producers and employees to ensure that – only approved sites are being used; – that any restrictions regarding use of approved sites are being followed; – that static advertising is being pre-approved; – and that only those permitted to use social media are using it; and – use of social media in investigations is documented Dewey & LeBoeuf LLP | 75
- 76. Geolocation Tracking and Telematics ● FTC: Geographic location is sensitive information ● If a service provider links location to a specific device of a specific person, provider must: – Give notice about how location information will be used, disclosed and protected, – State whether the provider will share location information with third parties and identify them, – Advise users how they can terminate the location-based services, and – State how long information will be retained Source: CTIA – The Wireless Association, Best Industry Practices and Guidelines for providers of location based services Dewey & LeBoeuf LLP | 76
- 77. The FTC Speaks: Privacy by Design – FTC Proposal, December 2010 ● Build privacy protections into everyday business practices: – Provide reasonable security – Collect only data needed for specific business purpose – Retain data only as long as needed for that business purpose – Safely dispose of data no longer needed – Implement reasonable procedures to promote data accuracy ● Companies should implement and enforce procedurally sound privacy practices throughout their organizations, including employee training and conducting privacy review when developing new products and services on a systemic basis Dewey & LeBoeuf LLP | 77
- 78. The FTC Speaks: FTC Testimonial Guidelines ● Governs endorsements and testimonials in advertising ● No private right of action; may be enforced by FTC under section 5 of the FTC Act ● Advertisers are subject to liability for false or unsubstantiated statements made through endorsements ● Advertisers subject to liability for failing to disclose material connections between themselves and endorsers ● Endorsements relating the experience of a customer must disclose generally expected performance Dewey & LeBoeuf LLP | 78
- 79. Social Media Issues In The Workplace Dewey & LeBoeuf LLP dl.com
- 80. Managing Change in the Workplace: Some of Today’s Challenges ● Lack of clear precedent: courts and legislators lag behind while agencies run ahead ● Social networking: lines between work and life continue to blur ● New communication channels: instant messaging as corporate tool and texting is not just for teens ● Electronic discovery: the document that would not die ● Workplace privacy: does it exist? ● Anywhere, anytime access: security risk and other challenges of mobile computing ● The 24/7 workplace and the FLSA ● Control is a remnant of days gone by ● Generational differences affect communication styles Dewey & LeBoeuf LLP | 80
- 81. Social Media Policies 1.5 ● 85% of financial services professionals under 50 are using social media. Ledermark survey, April 2010 ● 45% of their employees don’t have a social media policy or prohibit its use entirely. Ledermark survey ● 31% completely prohibit employees from visiting social networking sites while at work. Robert Half Technology survey, May 2011 Dewey & LeBoeuf LLP | 81
- 82. Online Social Networks ● Facebook has over 700 million users ● Approximately 67 million users per day access Facebook through Android and iPhone apps. ● Linked in – 120 million plus members ● 110 million tweets are sent daily ● Don’t think your employees are out there? Think again. Type your company’s name into the search engine of any social networking site. (Source: thenextweb.com/facebook/ 2011/094/23/the-number- growth-and-evolution-of-the-behemoth-that-is-facebook/) Dewey & LeBoeuf LLP | 82
- 83. Getting to Know You: Using Social Networking in the Hiring Process ● 24% of employers had hired a staff member based on their social networking profile ● 33% decided not to make job offer to candidate after seeing profile (photos of drugs/drinking or inappropriate behavior were the most popular reasons for eliminating candidate) ● 16% of employees changed their web profiles to enhance their professional images ● 22% of companies check candidates' profiles on Facebook/MySpace before deciding to hire them (this has doubled since 2006) ● 9% said they planned to review potential employees' social networking pages in the future Source: www.Careerbuilder.com/Article/(B-533) Dewey & LeBoeuf LLP | 83
- 84. Getting to Know You: Risks of Using Social Networking Websites in the Hiring Process ● Risk of making employment decisions based on inaccurate, irrelevant or false info ● Online social networking profiles often present personal information that would not properly be subject to inquiry during the hiring process ● Potential to eliminate applicants based on protected class status in violation of federal and state anti-discrimination laws ● Need to balance applicant’s rights with employer’s need to screen candidates thoroughly Dewey & LeBoeuf LLP | 84
- 85. Getting to Know You: Risks of Using Social Networking Websites in the Hiring Process ● Employers must have procedures for use of online data when making employment decisions – Determine when on-line searches will be used in hiring and promotion process – Decide whether to inform applicants about on-line searches and whether to ask for email addresses, user names and blog post – Comply with FCRA if using third parties to conduct search – Do not engage in unauthorized access of password protected sites Dewey & LeBoeuf LLP | 85
- 86. Are You at Work? Mobile Technology Blurs the Line Between Home and Work ● By one estimate, 72% of Americans check their email on weekends and vacations and 42% check email while home sick. Source: www.kikabink.com/news/most-workers-addicted-to-email-2-out-of-3-u- s-and-u-k-workers-check-mail-outside-business-hours/ (citing Harris Interactive research) ● iPass Mobile Employee Definition: Employee using a mobile device who accesses networks (other than corporate LAN or WLAN) for work purposes ● Average mobile worker works 240 hours per year longer than work force in general ● 43% of mobile workers keep smart phone at arm’s reach when they sleep ● 96% of mobile workers under 45 have smart phones ● 35% of mobile workers check email first thing upon awakening Source: The iPass Global Mobile Workforce Report, August 2011 www.mobile-workforce-project.ipass.com/cpwp/wp- content/files_mf/ipass_mobileworkforcereport-q-3_2011.pdf Dewey & LeBoeuf LLP | 86
- 87. Yours, Mine and Ours: A New World of Sharing How do you use your smartphone? Source: The iPass Global Mobile Workforce Report, http://mobile-workforce-project.ipass.com/cpwp/wp- content/files_mf/ipass_mobileworkforcereport_q3_2011.pdf Dewey & LeBoeuf LLP | 87
- 88. Yours, Mine and Ours: A New World of Sharing (Cont’d) Do you use your tablet primarily as a personal or work device? Dewey & LeBoeuf LLP | 88
- 89. I Owe You What?! Mobile Devices and Wage and Hour Obligations ● The average professional spends 50 minutes a day sending e-mails after work (Source: Cohesive Knowledge Solutions, 2008) ● Companies need to manage risk by: – Updating policies and handbooks related to use of personal devices – Don’t give mobile devices to non- exempt employees – Implement policies that restrict non- exempt workers use of company- issued devices FAD Media, Inc. Dewey & LeBoeuf LLP | 89
- 90. Dewey & LeBoeuf LLP | 90
- 91. Living Together: The Ongoing Employment Relationship ● Decide whether or not to monitor - virtually all employers retain the right to monitor and address personal use of the employer’s system ● Develop policy on use of personal devices in the workplace ● Put your policies on personal use and privacy rights into clear and unequivocal language and communicate it to your employees (Ex. You have no expectation of privacy in connection …) ● If employees can access the employer’s system remotely, require employees to provide access to remote devices used to access system ● Require employees to provide immediate notice, and consent to remote wipe, is a mobile device is lost ● FOLLOW YOUR POLICY CONSISTENTLY ● Revise policy as technology evolves ● Don’t make employment decisions turn on trivial matters Dewey & LeBoeuf LLP | 91
- 92. FINRA’s Latest Guidance on Dual Use Devices: Regulatory Notice 11:39, August 2011 ● Recordkeeping ● Q1: Does determining whether a communication is subject to the recordkeeping requirements of SEA Rule 17a-4(b)(4) depend on whether an associated person uses a personal device or technology to make the communication? ● A1: SEA Rule 17a-4(b)(4) requires a firm to retain records of communications that relate to its "business as such." This analysis does not depend upon the type of device or technology used to transmit the communication, nor does it depend upon whether it is a firm- issued or personal device of the individual; rather, the content of the communication is determinative. For instance, the requirement would apply if the electronic communication was received or sent by an associated person through a third-party's platform or system. A firm's policies and procedures must include training and education of its associated persons regarding the differences between business and non-business communications and the measures required to ensure that any business communication made by associated persons is retained, retrievable and supervised. Dewey & LeBoeuf LLP | 92
- 93. FINRA’s Latest Guidance Accessing Social Media Sites From Personal Devices ● Q14: May associated persons use personal communication devices and other equipment, such as a smart phone or tablet computer, to access firm business applications and perform business activity if the firm employs technology that enables the firm to keep records and supervise the activity? ● A14: Yes. Firms may permit their associated persons to use any personal communication device, whether it is owned by the associated person or the firm, for business communications. Of course, the firm must be able to retain, retrieve and supervise business communications regardless of whether they are conducted from a device owned by the firm or by the associated person. . . . firms should have the ability to separate business and personal communications, such as by requiring that the associated persons use a separately identifiable [secure] application on the device for their business communications. . . If the firm has the ability to separate business and personal communications, and has adequate electronic communications policies and procedures regarding usage, then the firm is not required to supervise the personal emails made on these devices. Of course, firms also are free to treat all communications made through the personal communication device as business communications. Dewey & LeBoeuf LLP | 93
- 94. Breaking Up is Hard to Do: From Dooce to the NLRB ● Dooced: Termination based on a blog posting; see www.dooce.com (blog of woman who was fired after writing about employer on blog) ● NLRB v. American Medical Response Company, Case No. 34-CA- 12576 (Connecticut, 2011). Employee terminated for criticizing her supervisor on Facebook in violation of policies. Important case because it challenged both the firing decision AND the employer’s policies. Case recently settled. ● NLRB v. Hispanics United of Buffalo (“HUB”), September 2, 2011. First ruling by an NLRB Administrative Law Judge, ruled that HUB violated the NLRA when it terminated five employees for criticizing a sixth co-worker on Facebook ―It is irrelevant to this case that the [Facebook posters] were not trying to change their working conditions and that they did not communicate their concerns to HUB‖ Dewey & LeBoeuf LLP | 94
- 95. NLRB Position on Social Media Practices and Policies: My Workforce Isn’t Unionized. Why Should I Care? ● Portions of the NLRA apply to ALL private employees. ● Specifically, employers can’t punish employees for discussing working conditions or unionization. ● Agency has taken aggressive stance on terminations as discipline for critical posts on social media. ● NLRA gives employees the affirmative right to engage in concerted action for mutual benefit and protection. Dewey & LeBoeuf LLP | 95
- 96. NLRB Acting General Counsel Releases Report on Social Media Cases: August 18, 2011 ● Report provides analysis of 14 cases involving employer’s social and general media policies submitted to NLRB’s Division of Advice. ● Four cases found protected activity where employees posting on Facebook were discussing terms and conditions of employment with fellow employees. Four other cases found activity was not protected. ● In five cases, Division of Advice found that some provisions of employers’ social media policies were unlawfully over-broad. Dewey & LeBoeuf LLP | 96
- 97. Breaking Up is Hard to Do: Insurance is a Competitive Business ● Tell employees that their company issued electronic devices will be ―scrubbed‖ or ―wiped‖ in the event of termination and get written acknowledgement. ● Draft non-solicit and non-competes that provide that communications to clients on social networking sites, including but not limited to Facebook, LinkedIn and Twitter, will be deemed a solicitation in breach of covenants. Dewey & LeBoeuf LLP | 97
- 98. Breaking Up is Hard to Do Carol Bartz “Quits” Yahoo Board On Thursday, Bartz said, in a sassy interview with Fortune, that she was staying on as a director. “Ms. Bartz is obligated to resign from the board and we expect her to do so,” the board’s spokesman said after the interview was published. She resigned the next day. After calling the board members “doofuses” who “f-ked me over,” we have to imagine any future board meetings would have gotten just a wee bit awkward. www.mogulite.com Dewey & LeBoeuf LLP | 98
- 99. Genetic Information Nondiscrimination Act of 2008 (GINA) ● Illegal to discriminate against employees or applicants because of genetic information ● Employers may not use genetic information in making employment decisions and may not request, require or purchase genetic information ● Any employer that possesses genetic information about an employee must maintain such information in separate files; and must treat it as a confidential medical record and may disclose it only under very limited circumstances ● Prohibition on requesting information defines ―request‖ to include ―conducting an internet search on an individual in a way that is likely to result in a covered entity obtaining genetic information.‖ 29 C.F.R. 1635 ● Safe harbor for inadvertent acquisition applies where employer ―inadvertently learns genetic information from a social media platform where he or she was given permission to access by the creator of the profile at issue (e.g., a supervisor and employee are connected on a social networking site and the employee provides family medical history on his page).‖ 29 C.F.R. 1634 Dewey & LeBoeuf LLP | 99
- 100. Guidelines for All ● Decide whether to permit/prohibit/limit or encourage blogging using company resources or time ● Prohibit disclosure of trade secrets or confidential info and violation of harassment policies ● Direct employees to use disclaimers – ―This post reflects my personal views, not those of the company‖ ● Be careful about threatening disciplinary action for disparaging statements; consider NLRA implications ● Have employees execute current confidentiality agreements and non-disclosure agreements ● Review non-competes to address use of LinkedIn and other social media sites to evade non-compete and non-solicit obligations Dewey & LeBoeuf LLP | 100
- 101. E-Discovery and Privacy ● Sensitive personal information is everywhere… – Instant messages – E-mails – Text messages – Online registrations – Social networking ● All of these electronic records could be discoverable in litigation, and could be monitored by an employer ● Privacy concerns are closely related to document management and e-discovery Dewey & LeBoeuf LLP | 101
- 102. QUESTIONS? Dewey & LeBoeuf LLP dl.com 3077034.1
- 103. Offices Worldwide Dewey & LeBoeuf LLP Dewey & LeBoeuf LLP | 3077034.1 103
- 104. Social Media 2.0 for Insurance Professionals: Maximizing Opportunities & Mitigating Risks in Today’s Marketplace “Social Media Exposures: What are they and can we transfer this risk” Paula Robertson, Vice President, Financial Practice Leader, Lockton Insurance Brokers, LLC
- 105. Insurance Industry Charitable Foundation Social Media 2.0 for Insurance Professionals November 9, 2011 L O C K T O N C O M P A N I E S, L L C
- 106. Insurance Industry Charitable Foundation Social Media 2.0 for Insurance Professionals WHAT DOES WHY? HOW? IT MEAN? What’s the attraction How did we get here? Where do exposures when it comes to come from? Social Media? What are your exposures? Risk transfer to insurance gsanfranciscooffice2011iicfsocialmediapresentation.pptx 106
- 107. What Does It Mean? Six Types of Social Media Social Content Collaborative Networking Communities Projects Sites Virtual Virtual Blogs and Game Social Microblogs Worlds Worlds The term Social Media refers to the use of web-based and mobile “ technologies to turn communication into an interactive dialogue. —Wikipedia ” gsanfranciscooffice2011iicfsocialmediapresentation.pptx 107
- 108. What Does It Mean? Use of Social Media Photo Blogging Sharing Video Micro Sharing Blogging Podcasts Key RSS Social Platforms Message Widgets Boards Chat Social Rooms Login Networking Credentials gsanfranciscooffice2011iicfsocialmediapresentation.pptx 108
- 109. What Does It Mean? Exposures Created Intellectual Data Security/ Property Privacy Infringement Personal Injury Torts gsanfranciscooffice2011iicfsocialmediapresentation.pptx 109
- 110. Exposures Created Intellectual Property Infringement Examples: Copyright Various Righthaven Lawsuits Trademark Second Life Direct and Vicarious Liability Key Word Advertising Personal Injury Torts Examples: Defamation Former Agriculture Department employee Libel, slander, trade libel Shirley Sherrod’s suit against Breitbart tests libel law Rights of Personality and Persona Including: intrusion upon seclusion, publication of Kim Kardashian sues Old Navy over look alike private facts, false light or misappropriation of name ads or likeness; Eavesdropping and the News of the World Trespass, wrongful entry or Scandal (Murdoch’s News Corp.) eviction, eavesdropping, or other invasion of the right of private occupancy; Data Security/Privacy Examples: Wrongful Collection of Information (failure to Facebook—which lawsuit? disclose/obtain consent) Toysmart Not following your Terms of Use/ Privacy Policy Employers using Social Media to vet potential Fair Credit Reporting Act candidates gsanfranciscooffice2011iicfsocialmediapresentation.pptx 110
- 111. Blended Errors and Omissions Liability Exposure Blended Errors and Omissions Liability Exposure Data Security/ Technology Media Privacy Liability Mobile Terms of Widgets/Plug-in Facebook/ Cookies/ Use and Apps from your Web Web site Blogs COPPA Twitter Web-beacon Privacy site Policy gsanfranciscooffice2011iicfsocialmediapresentation.pptx 111
- 112. Blended Errors and Omissions Insurance Policy Part 1 Blended Errors and Omissions Insurance Policy Technology Media Liability Intellectual Tech Products – Personal Injury Tech Services Property Mobile Apps Torts Infringement gsanfranciscooffice2011iicfsocialmediapresentation.pptx 112
- 113. Blended Errors and Omissions Liability Coverages Technology Liability and Miscellaneous Professional Liability Claim Expenses and Damages emanating from a Wrongful Act (varies by market) in the performance of or failure to perform Technology Services or your MPL Services (tailored by definition in the policy) Claim Expenses and Damages emanating from your Technology Products failure to perform or serve the purpose intended Media Liability Claim Expenses and Damages emanating from Personal Injury Torts and Intellectual Property Infringement (except Patent Infringement) Claim Expenses and Damages emanating from Electronic Publishing (web-site) and some will provide coverage for all ways in which a company can utter and disseminate matter gsanfranciscooffice2011iicfsocialmediapresentation.pptx 113
- 114. Blended Errors and Omissions Insurance Policy Part 2 Blended Errors and Omissions Insurance Policy Data Data Security/ Data Security/ Privacy Event Security/ Privacy— Expenses— Privacy Regulatory (Reimbursement) Liability Privacy Settlements Regulatory Consumer with the Forensics, Suits From Proceeding, Class FTC, State Notification Legal and Credit Your including Defense Action AGs, HHS, F Fines and costs Costs Public Monitoring Customers Suits INRA, SEC, Consumer Relations etc. Redress Funds gsanfranciscooffice2011iicfsocialmediapresentation.pptx 114
- 115. Blended Errors and Omissions Liability Coverages Network Security Liability Claim Expenses and Damages emanating from Network and non-Network security breaches Privacy Liability Claim Expenses and Damages emanating from violation of a Privacy Tort, Law or Regulation Claim Expenses and Damages emanating from a violation of a law or regulation arising out of a Security Breach Privacy Regulatory Proceeding and Fines Claim expenses in connection with a Privacy Regulatory inquiry, investigation or proceeding Damages/Fines (varies by market) Consumer Redress Fund Privacy Regulations Fines and PCI Fines (varies by market) gsanfranciscooffice2011iicfsocialmediapresentation.pptx 115
- 116. Blended Errors and Omissions Liability Coverages Privacy Event Expense Reimbursement Expense reimbursement for third-party Forensics costs Public Relations costs Legal Expenses Mandatory Notification Costs (comply with Security Breach Notification Laws) Voluntary Notification Costs Credit Monitoring Call Center Extortion Payments Reasonable and necessary expenses and any funds or property paid (varies by company) gsanfranciscooffice2011iicfsocialmediapresentation.pptx 116
- 117. Data Security and Privacy Liability Insurance Marketplace Tailored insurance solutions based on your exposures No coverage/policy uniformity in the marketplace Capacity $250M ($50M first-party network BI) gsanfranciscooffice2011iicfsocialmediapresentation.pptx 117
- 118. Data Security and Privacy Liability Insurance Marketplace Two different approaches: Indemnity Reimbursement policies allow the insured to hire vendors (with consent from the carrier). Will vary by carrier and range from recommending vendors who can manage a data breach response to providing a risk transfer solution (reimbursement of privacy event expenses). Privacy event expenses are typically subject to a sub-limit and will erode the policy aggregate limit. Vendor Panels Automatic vendors provided by carriers—established breach panels. Some carriers offer notification costs outside of the aggregate limit. Some carriers offer notification costs per affected individual rather than monetary sublimit . gsanfranciscooffice2011iicfsocialmediapresentation.pptx 118
- 119. Our Mission To be the worldwide value and service leader in insurance brokerage, employee benefits, and risk management Our Goal To be the best place to do business and to work www.lockton.com © 2011 Lockton, Inc. All rights reserved. Images © 2011 Thinkstock. All rights reserved. 119
- 120. Social Media 2.0 for Insurance Professionals: Maximizing Opportunities & Mitigating Risks in Today’s Marketplace Speakers Panel Moderated by: Mitch Dunford, CEO Wells Publishing
- 121. The Insurance Industry Charitable Foundation presents Social Media 2.0 for Insurance Professionals: Maximizing Opportunities & Mitigating Risks in Today’s Marketplace November 9, 2011 In partnership with Title Sponsor:
Editor's Notes
- #108: Can you replace “Youtube” with a picture / symbol for”Youtube? And do that for each circle?
- #111: Rights of Personality and PersonaThe right of publicity is the intrinsic right of every person to control and benefitfrom the commercial exploitation of his or her identity (including a person'sname, signature, likeness, picture, portrait, or voice). No prior exploitation isrequired. Unlike in trademark law, a person may assign his or her right ofpublicity without goodwill and may license such rights without any qualitycontrol. The right of publicity is governed by state law or common law,depending on the jurisdiction, which affords individuals varying degrees ofprotection.A person can also invoke his or her right of publicity for protection against theunauthorized use of his or her photograph or likeness. Jurisdictions differ onthe proper test for identifying the nature of rights and whether the photographor likeness must be recognized by the public in general or someone familiarwith the person(s) depicted in the photograph or likeness. For example, theNew York Court of Appeals held that a photograph that depicted only the sidesand rears of a nude woman and young girl was subject to the New York CivilRights Act because "[t]he identifying features of the subjects include their hair,bone structure, body contours and stature and their posture.“ ________The defamation lawsuit filed by a former Obama administration official against conservative blogger Andrew Breitbart promises to test the application of traditional libel laws in an emerging media landscape in which blogs and social networking websites have taken the place of newspapers and television broadcasts.Media and legal observers say the case bears watching because of that, but that it largely will hinge on well-established law and precedents despite its high-tech setting.“While this is one of the first high-profile blog-based libel suits, the basic underpinning is pretty simple — was the gist of the material posted not substantially true,” Jeff Stein, a communications professor at Wartburg College in Iowa who also is a lawyer, wrote in an e-mail to The Washington Times. “I think she can win on that.”The lawsuit stems from a highly charged incident last summer in which Mr. Breitbart posted a video clip of Shirley Sherrod, who is black, delivering a speech at an NAACP event. In the video, she describes an incident in which she was reluctant to help a poor white farmer. The video ignited a media firestorm and ultimately led the Obama administration to force Mrs. Sherrod’s resignation as the Department of Agriculture’s Georgia state director of rural development.___________Kim Kardashian wants Old Navy to stop using a lookalike to advertise its clothing.The reality show starlet and model on Wednesday sued the clothing store and its parent company, The Gap Inc., in a Los Angeles federal court alleging their ads violated her publicity rights with ads that feature a woman who looks like her.A video of a broadcast ad featuring a smiling, dark-haired woman who bears a resemblance to the real Kardashian has been viewed more than two million times on Old Navy's YouTube channel.Kardashian's lawsuit claims consumers may be confused by the ads and the model's actual endorsements, which include her own clothing store and shoe line. A commercial, titled, "Super C-U-T-E," began airing in February and Old Navy is still using some of the promotions, the lawsuit states.The case cites all the benchmarks of modern celebrity: her eight million followers on Twitter, more than five million fans on Facebook and ranking as one of the most searched-for celebrities on the Internet.
- #119: Indemnity policies:Reimbursement policies that allow the insured to go and hire required vendorsVary from providing recommending vendors and quarterbacking a data breach to providing a simple risk transfer solutionControl Privacy Notification Costs and Privacy Regulatory Defense costs using inner sublimits eroding the aggregate limitVendor PanelsAutomatic vendors provided by carriers – established breach panelsSome carriers offer notification costs outside of the aggregate limitSome carriers offer notification costs per affected individual rather than monetary sublimits.