Defending The Digital Workplace

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Archive for the ‘social networking’ Category

Facebook Firing Ends in Settlement with NLRB

The National Labor Relations Board (NLRB) announced that it had reached a settlement in a case involving an employee’s discharge for posting negative comments about a supervisor on the employee’s Facebook page. Click here for the NLRB’s press release.

In sum, however, the NLRB had issued a complaint against American Medical Response of Connecticut, Inc., on October 27, 2010,  alleging that the discharge violated federal labor law  (the National Labor Relations Act or “NLRA”) because the employee was engaged in “protected activity” when she posted the comments about her supervisor, and responded to further comments from her co-workers.

Under the National Labor Relations Act, employees  have a federally protected right to form unions, and it prohibits employers from punishing workers — whether union or non-union — for discussing working conditions or unionization.

The NLRB complaint also alleged that the company maintained overly broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees. This policy prohibited employees from making disparaging remarks about the company or depicting it online without permission. Further, the NLRB alleged that AMR (the employer) had illegally denied union representation to the employee during an investigatory interview shortly before the employee posted the negative comments on her Facebook page.

Under the terms of the approved settlement, the company agreed to revise its social media policy to ensure that the rules do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions. The allegations involving the employee’s discharge were resolved through a separate, private agreement between the employee and the company.

The Take Away for Employers

This had been the first case in which the NLRB sought to argue that workers’ criticisms of their bosses or companies on a social networking site was a protected activity under the NLRA and that employers would be violating the NLRA by punishing workers for making statements in the context of social media. Accordingly, employers likely would have welcomed guidance from the NLRB as to how the 75-year-old NLRA would be reconciled with the technological realities of how employees communicate in the age of social media.

For example, the employee involved in the NLRB’s complaint, Dawnmarie Souza, at one point mocked her supervisor on Facebook, using several vulgarities to ridicule him. This eventually drew supportive responses from her co-workers that led to further negative comments about the supervisor. Where a Facebook conversation involves several co-workers it is more likely to be viewed as “concerted protected activity.” But what if instead, Ms. Souza had simply lashed out in a negative post against a supervisor and no co-workers joined in the discussion (not even a single “like” in Facebook terminology). Would that type of comment in the absence of “co-worker discussion” still be considered protected?

In any event, from a strategic perspective, employers should appreciate that this issue will be resolved another day, perhaps under a less “labor friendly” NLRB.

The clear take-away, however, is that the NLRB’s original complaint and this settlement signals that the NLRB intends to protect employees’ rights to discuss the conditions of their employment with co-workers irrespective of whether this discussion takes place at the water cooler or on Facebook.

Accordingly, it is critical for employers – regardless of whether your workforce is unionized or not – to review your Internet and social media policies to determine whether they would be subject to a similar attack by the NLRB that the policy ‘reasonably tends to chill employees’ ” in the exercise of their rights under the NLRA to discuss wages, working conditions and unionization. Areas to consider include:

  • Does the social media policy expressly restrict protected activity;
  • Would an employee construe the social media policy as prohibiting protected activity;
  • Has the social media policy been used to discipline employees who engaged in protected activity; and
  • Was the policy put into place in in response to concerted or protected activity.

None of  this should be taken as legal advice, but it is good advice. And we would welcome the opportunity to offer our insight as to what policies should and should not say and strategies for managing the unique risks found at the intersection of social media and employment and labor law.

Adding to your Business Toolbox: A Roundup of Resources for Business Organizations

Business ToolboxA number of resources are available at www.ebusinesscounsel.com that are relevant to starting or improving your business operations. In addition to those resources, the following links also provide information worth checking out:

  1. Entrepreneur: How to Protect Remote Employees’ PCs from Security Threats
  2. Federal Trade Commission: Revised Endorsement Guides for businesses & bloggers (regulations applicable to testimonials and endorsements)
  3. Entrepreneur: Google Apps for Your Business: The Good, the Bad and the Ugly
  4. Hennessey Capital, by Joe Romeo: Business Plan Basics
  5. Mashable – Business: 5 Small Biz Web Design Trends to Watch
  6. Entrepreneur: Big Marketing Stunts, Small-Business Style
  7. Business Model Alchemist a/k/a Alexander Osterwalder a/k/a genius (ok, this might be more personal commentary than fact. Although, based on Mr. Osterwalder’s work, genius status should not be ruled out) :Combining Business Model Prototyping, Customer Development, and Social Entrepreneurship
  8. Mashable – Business: 4 Lessons Small Businesses Can Learn from Apple’s Antennagate

How to Increase the Likelihood Employees will Follow Your Social Media Policy

A lot has been written about social media, its impact on business, and risks for employers. See my prior posts here (Digital Security Report: Social Networking Expand Risks for Employers) and here (Another Reason for Employers to be Wary of Social Media – Unfair and Deceptive Acts). And to mitigate these risks the conventional wisdom says to put a policy in place that applies to employees’ use of social media. But it is also important to implement a policy that is actually effective and will be followed by employees.

Before discussing such a policy, a little foundational information is needed. In their book “Switch: How to Change Things when Change is Hard,” Chip and Dan Heath explain that any change must consider what is described as the “Rider” and the “Elephant.” This analogy is, in turn, taken from Dr. Jonathan Haidt’s book “The Happiness Hypothesis,” which describes the emotional side of our brain as an elephant and the rational side as its rider. This analogy creates a vivid image of a person sitting atop an elephant holding the reins seemingly in control. Or at least until the elephant and rider disagree about which direction to go at which point the rider will ultimately lose the battle. (This analogy also vividly explains why despite wanting to lost 10 lbs I can’t put down these delicious cookies. Damn you elephant, Damn you!).

This is a very cursory and simplified explanation of a great book.* But with this explanation, let’s insert the Rider/Elephant into the social media policy implementation equation.

Direct the Rider: The Heath Brothers note that resistance is often due to a lack of clarity. In this regard, social media policies are simultaneously too specific and too broad. This leaves the Rider with information overload and too much ambiguity to process, which undercuts the Rider’s ability to control the elephant. This is because the Rider experiences a decision paralysis, i.e., too many choices consume the Rider’s cognitive resources making it that much easier to give into the immediate emotional needs of the elephant.

For example, a proposed social media policy was forwarded to me by an attorney (a non-client. The attorney wanted to know my thoughts – i.e., free legal advice). This policy was more of a manual, which came in at just over 14 pages. Now imagine you are  John Doe, disgruntled employee blowing off steam on Facebook about a dispute he had with Jane Doe manager. Or that you are Jane Doe manager twittering about your company’s upcoming product release. In these examples, John Doe would need to review Section III, paragraph A(1) to evaluate what his company considers to be appropriate on-line discussions of co-workers. Jane Doe, however, would need to consult with Section V, paragraph B(1) to evaluate how company information should be treated, and would probably want to consult with Section VII, which deals with marketing and communications with the public. Any bets that this policy will be followed?

So lets replace the preceding 14 + page manual with a set of rules that script the critical points your organization wants an employee to consider before publishing  something on any social media outlet. I call this the “Think Before you Publish” Social Media Policy (I know, I’m very creative):

  • Rule No. 1 – Assume anything you blog about, tweet, update on Facebook, or otherwise publish will appear on the cover of the Wall Street Journal;
  • Rule No. 2 – Assume you will have to explain to your mother, father, children, or any loved one why you published any of the preceding and what you were thinking at the time; and
  • Rule No. 3 – If your social media publication involves your employer, any of its managers, employees, products, or services, assume you will also have to explain why and what you were thinking when you made such post to any of these constituents.

These rules taken together provide a working framework for an employee to consider, where the focus is on “specific behavior,” i.e., think about what you are about to publish before making it public. These rules also do not tax the Rider’s cognitive processes by requiring the Rider to evaluate the content of a “tweet” or a Blog posting, or a Facebook update with sections from a 14 + page manual.

I fully concede that it will be important to supplement these three rules with explanations, especially when it comes to work related publications that may not seem facially inappropriate. Examples may include releasing non-public information about an upcoming product release, endorsing a produce or service without considering the Federal Trade Commissions recent expansion into this subject, or if your product or service is in a heavily regulated industry with specific issues to address. But at the very least, these three rules are intended to provide a moment to reflect before hitting that “share” button.

Motivate the Elephant: Motivating the elephant means appealing to a person’s emotional side. This is because simply speaking to the rational rider will not carry the day (I know if I want to lose weight, I need to exercise and eat fewer calories, like from cookies. Yet here I am enjoying one two cookies). Similarly, employees are often given a policy manual to read and review and a form acknowledging the employee has done both. Applying this approach to social media does little to appeal to the “Elephant.” But how do you appeal to an employee’s self-interests to obtain actual buy-in when it comes to following your social media policy?

There are innumerable examples of what happens when social media goes wrong. For example, recently a female middle school teacher was discharged after photographs of her engaged in a simulated act of fellatio with a male mannequin appeared on an internet website (Land v. L’anse Creuse Pub. Schs. Bd. of Educ.). These pictures were taken at a combined bachelor/bachelorette party. The discharge was later reversed by the Michigan Teacher Tenure Commission and affirmed by the Michigan Court of appeals. While this case had a happy ending for the teacher in that she got her job back, it came after a prolonged litigation process that was witnessed, at a minimum, by school employees, students, and parents.

Another great example occurred last year when a consultant/VP tweeted about being in Memphis: “… i’m in one of those towns where I scratch my head and say ‘I would die if I had to live here!’” Unfortunately for the consultant, he was in Memphis because he was presenting to a major client headquartered in Memphis (a little company called FedEx). Worse, employees at FedEx ran across the tweet. And even worse, FedEx responded. Click here for the full write-up and the response.

There is even a website called youropenbook.org that allows one to look through posts on Facebook users’ walls, including the potentially embarrassing and  career-ending kind. In perusing through this site, I was amazed how many people have a boss who is an idiot!

Using these examples – and many, many others – to illustrate why an employee should follow the company’s social media policy appeals to the elephant, i.e., “follow these rules so you don’t end up like the last jack-ass that called me an idiot.” Again, the intention is that before an employee hits the share button, he or she will reflect on what might happen to the individual if the publication became public knowledge.

Conclusion

Social media is widely considered a “must’ for business organizations. That might be true. Even if it is not, however, it is a must to have a social media policy.  To increase the effectiveness of that policy keep in mind your Riders and Elephants. In other words, make the policy succinct and readily translate into expected concrete behavior. Second, when presenting the policy to your employees, don’t forget to appeal to their elephant by addressing their emotional interests, i.e., show why the policy is intended to help the individual.

Feel free to forward me any outrageous or noteworthy social media policies with a brief explanation of why the policy is either. Also, contact me with any questions about this topic.

* I don’t know the authors Chip and Dan Heath. I’ve never spoken with either individual. In fact, other than seeing their pictures on the inside of the book jacket, I couldn’t pick Chip or Dan out of a line-up. I bring this point up because Switch and their earlier book, Made to Stick, are both fantastic reads, worth picking up and this recommendation is based solely on the merit of those books and no personal connection or personal interest on my part (I’m deliberately not including a link to either book to remove any suspicion that I’m even getting compensated for referrals to the books). Although, in full disclosure, if the Heaths would like to give me a cut from the increased book sales my post is certain to generate, I’m willing to negotiate (and please read the preceding disclosure with heavy sarcasm).

Written by Jason Shinn

July 5, 2010 at 10:01 pm

Terms of Service for Maximizing E-Commerce Success

With UFC 94 coming up on January 31, 2009 (Go BJ Penn!) and Superbowl XLIII on February 1, 2009, one is reminded that it is the big play that brings people to their feet, whether it is the home run, the slam dunk, the long touchdown pass, or for mixed martial arts, the knockout. But business leaders realize that, while these big plays are spectacular, it is the subtle and often mundane that creates the opportunity for big play business success.

For example, in martial arts, the clinch is essential for success. There are several variations of the “clinch,” including the Muay Thai Clinch, a Dirty Boxing Clinch, and Wrestling Clinch. But the clinch is not very exciting in isolation. And regardless of the variation, it still looks like two fighters hugging or horribly dancing (and in mixed martial arts the fighters are generally big, sweaty men, which is not a cool image). But in actuality, the clinch is essential for wearing an opponent down or directly setting-up a big play knockout.success-in-digital

While a Website  is no longer a “big play” event, business organizations have incorporated Websites into every aspect of their commercial enterprise. And now more business organizations are using social networks/Web 2.0 technologies for business pursuits, e.g., recruiting purposes and promoting or improving the company, products, and services. These innovations, however, do create new legal considerations to consider (I know, d*mn the lawyers).

Websites, regardless of content and functionality, generally post a link to an online agreement, typically referred to as the “Terms of Service” (TOS) or “Terms of Use.” Similar to the clinch, the TOS accompanying a Website are about as exciting as it would be to watch Chief Justice John Roberts write a hundred times on the blackboard, ” … I will faithfully execute the office of President of the United States.”  But as important as those words are to the United States, the TOS are equally important as a starting point for reducing on-line liability risks and protecting business interests.

For example, Dell’s IdeaStorm lets customers/third parties submit ideas to Dell. It is worth noting that Dell’s TOS, read, in part, “You grant to Dell and its designees a perpetual, irrevocable, non-exclusive fully-paid up and royalty free license to use any ideas, expression of ideas or other materials you submit (collectively, “Materials”) to IdeaStorm without restrictions of any kind and without any payment or other consideration of any kind, or permission or notification, to you or any third party.” (I’ll leave it up to you to decide if a discount on a laptop would be worth granting such a broad license for something that could be a a market game changer).

Dell also tries to limit its liability by including in its TOS a provision that reads, “[y]ou agree that the Materials you submit: (i) are original with you and accurate, and (ii) do not violate and will not violate the rights of any third party or any local, state, national or foreign law, including any right of publicity, right of privacy or any other proprietary right.” Dell, like most responsible (and self-interested) businesses organizations, does not want to wrongfully acquire intellectual property (IP) or, at least, get dragged into litigation for doing so.

TOS may also take advantage of legal protections under applicable statutes. For example, the Digital Millennium Copyright Act (DMCA) provides in part some limitations on the liability of certain on-line service providers for copyright infringement. These limitations, however, require specific Website content information and additional steps to follow, all of which is considerably less costly than litigating a copyright violation. Thus, taking advantage of such “safe-harbors” goes a long way to limit exposure to potential litigation costs and damages.

Like the clinch, TOS are also used offensively. In this regard, Craigslist recently filed a number of suits concerning the violation of Craigslist’s TOS under the Federal Computer Fraud and Abuse Act. In its litigation, Craigslists is generally going after “auto posting” software and service providers and those involved with the distribution of software that is used on Craigslist. Craigslist alleges that for the software to be developed the Defendants had to access and copy its website to develop, test, implement, use and provide the software, programs, devices, and services. This access was unauthorized and contrary to the user agreement on the Craigslist website.

Business professionals also need to appreciate the consequences of poorly drafted TOS. For example, I reviewed a Web site’s TOS (just for fun and not for a client — I know, I really need to get a life).  It had a statement that read “[Company X] is responsible for the confidentiality of its clients, their records and future business plans.” (emphasis added). This was clearly not what any company trying to limit its exposure to risks intended and I contacted “Company X” to confirm this. I never received any response, but a few weeks later I checked back to see that TOS had been changed to “is not responsible.” You are welcome Company X.

Business professionals also need to appreciate the consequences of making representations in their TOS. For example, many Websites include a statement as to maintaining the privacy of its user’s information. But the Federal Trade Commission (the agency responsible for enforcing these provisions) takes these representations serious and will put companies into the legal equivalent of a clinch and pummel away, i.e., impose significant fines and other remedial requirements, if these representations are false or breached.

So the take away is to make sure you say what you mean, mean what you say, and be prepared to back it up.

Finally, business professionals should appreciate the consequences of changing TOS. It is common for companies to unilaterally modify their Websites, including TOS and simply post the new TOS on the company’s Website with no further notification to users. But Courts have refused to enforce such changes. In Douglas v. Talk America, Inc., the court held the “[p]arties to a contract have no obligation to check the terms on a periodic basis to learn whether they have been changed by the other side.” Accordingly, the court concluded that the revised TOS were not enforceable because posting the new terms at the service provider’s web site was not sufficient notice. Examples like the Douglas case provide a road map for business professionals to follow in making sure revised TOS are enforceable.The economic downturn is prompting business owners — by necessity or by opportunity — to re-examine contracts with suppliers, vendors or landlords and come up with creative deals. And in many cases, they are saving a substantial sum of money.

At the end of the day, legal risks should not act as a barrier to any innovation in the marketplace. But prior to investing in an innovation, smart choices need to be made to maximize its return while limiting its risks.  A well-drafted terms of service for your Website — while not a game changer — provide an essential means to deliver that game changer by maximizing an e-commerce strategy, reducing legal risks, and protecting business interests.

I would be interested, however,  to hear about any TOS that were exceptionally over the top or otherwise notable. The winner – as chosen exclusively by me – will get two tickets to the 2010 Superbowl, subject to the following terms of service: (i) The Detroit Lions must be one of the teams playing in the 2010 Superbowl; (ii) This Offer excludes any Superbowl that may be played in January or February; (iii) This offer is null and void if every other team in the National Football League ceases to exist or is otherwise unable to play in the 2010 Superbowl making the Detroit Lions the Superbowl participant by default; (iv) Your participation in this offer or by blinking at any point in the next seven (7) days represents your agreement to be conclusively bound by these terms of service along with any other proclamation I may make from time to time; and (v) You further agree that such terms of service may be changed, including retroactively to the beginning of time and prospectively to the end of time, or any point in between, unilaterally, without notice to you, and simply because I say so.

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