Archive for the ‘Web 2.0’ Category
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.
Written by Jason Shinn
February 7, 2011 at 10:52 pm
A 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:
- Entrepreneur: How to Protect Remote Employees’ PCs from Security Threats
- Federal Trade Commission: Revised Endorsement Guides for businesses & bloggers (regulations applicable to testimonials and endorsements)
- Entrepreneur: Google Apps for Your Business: The Good, the Bad and the Ugly
- Hennessey Capital, by Joe Romeo: Business Plan Basics
- Mashable – Business: 5 Small Biz Web Design Trends to Watch
- Entrepreneur: Big Marketing Stunts, Small-Business Style
- 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
- Mashable – Business: 4 Lessons Small Businesses Can Learn from Apple’s Antennagate
Written by Jason Shinn
August 11, 2010 at 9:14 am
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.
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).
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.