snapchat1I recently gave a presentation on social media to a local non-profit and had the opportunity to review some of the latest statistics when it comes to the use of social media.

Frankly, I knew that there has been a shift away from Facebook for some younger people but even I was surprised by the trendlines.   It’s happening much quicker and in bigger numbers than you might think.

And even more surprising, the big winner is: Snapchat.

Yep, the little app that I talked about in 2013.  (Think about how quickly and rapidly the technology has changed in less than four years.) Put another way, the disappearing social media sites that were just getting started are now big.

How huge? According to a new study of what social media sites college students use first, fifty-eight percent of college students said they open Snapchat first, compared with 27 percent who chose Instagram, 13 percent who said Facebook and the 2 percent who opt for LinkedIn.

Another recent survey by Pew Internet found that 56 percent of smartphone users between 18-29 years old use auto-delete apps like Snapchat. That is more than four times the share of users between 30-49 years told.

(Teen usage is even higher with Facebook as the fourth most popular app, behind Snapchat, Instagram & Twitter, according to a Piper Jaffray Fall 2016 study.)

Let’s not, however, write off Facebook just yet.  A whopping 79 percent of online users are still on Facebook.  But these overall statistics show that Facebook has lost it’s exclusive hold on younger online users.

From an employment law context, this continues to cause all sorts of headaches.

With disappearing snaps, for example, it can be difficult for employers to track down and monitor harassment in the workplace. (The fact that some Silicon Valley companies are under scrutiny is perhaps not that surprising, if still disappointing.)

And when it comes to document retention, in the case of a lawsuit, apps like Snapchat are a challenge as an employer tries to preserve relevant information.

For employers, I think it’s important to recognize that we’re in the next generation of social media apps.  If you’ve just caught up to Facebook, you’re already behind the curve.

What may be next? That’s hard to predict.  Some teens I know are using apps like Musical.ly to share content.    (Never heard of it? Well, over 100M users are on it.)

Other types of live broadcasting apps, building off of Facebook Live, continue to grow as well.

Employers would be wise to expand their horizons. A broad social media use policy defining proper use when it comes to the workplace is still a key component.  While you may be on Facebook, the generation entering your workplace just isn’t on Facebook as much anymore.

Today, cross-posted on the LXBN site, I reflected on the biggest legal developments of the first half of the decade.  I am reposting it here, but my sincere thanks to Lexblog for the support it has given me over the past 8 1/2 years and for the opportunity to provide some insight on its site.

yearsWhen I was asked by LexBlog to provide insight into my most significant story I’ve written about in the first half of this decade (and wondering if it started on January 1, 2010 or 2011?), I first thought about looking at some statistics of pages visited on my blog.

Turns out that my most read story was….a blurb on what the IRS reimbursement rate for business travel was in 2010. (Followed by stories on the rates for 2015, 2011 and 2012.).

So, let’s just say that blogging statistics can be a bit deceiving. Though, one other statistic really stands out: There’s been a huge rise in viewing the blog on both social media and on mobile phones.

And that, I think leads me what I think is the big overall story of the 2010s: The rise of social media in employment law.

This is, of course, not new. Back in 2012, I indicated that the biggest story then was the rise of social media.

That has only been amplified in the following years.

For the first few years of the 2010s, it seemed that every other presentation I did was on social media. First, it was to educate employers on what social media was. But then beyond that, was the second layer — how was social media impacting the workforce.  In 2012, I helped plan WESFACCA’s “Day of Social Media” to help educate in-house lawyers on the perils of social media.

My discussions ranged from the now seemingly quaint “Facebook firing” case of November 2010 to the September 2013 case where a Facebook “like” was deemed a protected activity to the new 2015 Connecticut law restricting employer access to personal social media accounts.

But I do think the tide is turning a bit.  Social media has become so mainstream that it is now just part of the myriad of things human resources has to keep track of.  People are less shocked by a Facebook post and employees have become smarter about their use of privacy settings too.

Sure, people still say stupid things on social media and they are still getting fired for it (appropriately, in some instances) but employers are now able to keep some perspective about the whole thing too.

So, in five years (and heaven help all of us if I’m still writing this blog in five years), I think it’s unlikely to still be dominating posts like it did for the first half.

What will take it’s place? My wager is on data privacy.  Yes, it’s a bit self-serving of me to predict this in light of the presentation we did this month on this very topic.  But judging by the interest we’ve been getting in the subject, I think we’re on to something.

Employee data is just one aspect of this.  Rather, employers who store information on a computer are subject to attempts at hacking and theft on a daily basis.  Plus, employees who transmit information may do so without encrypting the information — leaving the data open to prying eyes.

I don’t know where it all will lead, but I will say that if you aren’t doing everything you can to ensure the safety of the data on your networks, you probably aren’t doing enough.

HallofFame200pxV32007 seems like yesterday.

And yet, eight years after I started this blog and over 1800 posts later (and a Hall of Fame entry), I’m pretty sure 2007 WASN’T yesterday.

So for this year’s anniversary post, I thought I would capture what I think are some of the biggest storylines from the last eight years.  This isn’t definitive, but there are a few things that stand out.

1.  Social Media – Well this first one was easy, right? What’s amazing is that I didn’t even talk about Facebook and its impact on employers until fall 2008.  In that post, I talked about whether employers should use those sites in their hiring practices.  Since then, there seems to be no corner of the workplace that hasn’t been touched by social media. And yet, I’m also struck by the fact that there is a perceptible sign that we’re seeing this area mature. Less discussions about whether to have a social media policy. And less handwringing about whether social networking site posts are discoverable.  Yes, there are still unsettled areas on this  — the NLRB’s guidance continues to shift — but social media isn’t nearly as foreign as it was back in 2007.

2. The Return of the NLRB – Any discussion of the last eight years certainly must discuss the NLRB under the Obama Presidency.  There are those who complain about the political nature of the agency, but it’s always been a creature of various Presidential administrations.  But what we’ve seen over the last few years in particular is use of cases and regulations to chart new ground (or reverse older ground) in elections, workplace communications, and, last month, joint employer status. As such, we’ve seen union membership increase in several states, like Connecticut.  Make no mistake: On this day after Labor Day, unions and labor law have received a big old proverbial shot in the arm the last several years.  The election in 2016 will be a pivotal year in determining whether this changes continue.

3. The Battle Over Disabilities – True, there are plenty of other noticeable changes since 2007, but one that barely gets mentioned is the Americans with Disabilities Act Amendments Act.  It was one of the last employment law bills signed by President Bush and became effective January 1, 2009.  The Act changed the debate on litigation involving employees with disabilities. Instead, the Act said that courts should interpret the act to provide the coverage to individuals “to the maximum extent permitted.”  For example, previously, courts and employers had to determine a person’s disability including any mitigating measures that the individual had such as prosthetics, medications or hearing aids. Now, employers and courts must ignore those measures.   As a result, ADA cases have moved from “threshold” issues (whether the person has a disability) to “liability” issues (whether the person was actually discriminated against).

While EEOC disability charges increased markedly from 2008 to 2010 – that probably had more to do with the economy than anything else. Claims have levelled off since then and have even dropped from their peak in 2012.

A lot has changed since I started this blog in 2007.  I thank you all for your continued readership.  We’ll see what the next year brings.

For employers, the power of the Internet is pretty scary at times.

The latest meme to hit the Internet won’t change that view.

Sometime yesterday (Sunday) afternoon, someone tweeted a picture of a worker from a Target store.

His name is “Alex”. We know this because of his name tag. And apparently he’s cute and teenagers started retweeting his picture and lots of other tweets with his name.

Like hundreds of thousands of times.  And within 24 hours, his name has become one of the top 10 hashtags on Twitter — #AlexfromTarget.

There’s even a Buzzfeed article just devoted to him.  And Time magazine.  I’m sure we’re only hours away from The New York Times treatment too.

You might be scratching you head at this point.  Are you missing something?

As far as I can tell, no. He’s just a worker from Target. That’s it.

Target, to its credit, has been watching the social media streams and by this morning, had a tweet of their own.  “We heart Alex too”, it posted.

Cute.

For employers, though, this latest meme is still yet another example of how the trivial can become the viral. How your retail stores are just one more place where average teenagers can become internet superstars literally overnight.

By now, I’ve preached about having a social media policy. But that policy really wouldn’t cover #AlexfromTarget.  What you also need is a social media response plan.

Andrea Obston, of Andrea Obston Marketing Communications, Inc., often preaches about how employers need to make sure to protect your brand during a crisis.

So far, Target is learning the lessons of the past by staying ahead of the curve.

Before your employees turn into internet memes, make sure you have a social media response team designated ahead of time.  Knowing who will respond and how, can be critical in preventing an internet meme from ruining your workplace.

Will Alex continue working at Target after all of this media scrutiny? We shall see.

If it seems that there are more social media apps out there than ever before, you’re not going crazy.  No longer do employers just have to worry about Facebook. Rather, a whole host of sites has popped up leading to new headaches and challenges for employers.

I’ve talked about this before, but Law360 published a pretty thorough article last night in which I’m quoted regarding “What Employers Need To Know About the Latest Social Media”.

In it, I talk about the practical consequences that Facebook’s purchase of WhatApp (for $19 billion) will have on communications in and around the workplace.

With Facebook’s recent $19 billion acquisition of WhatsApp, a cross-platform instant messaging subscription service for smartphones, it’s safe to say that messaging platforms are on the rise. These messaging services provide their users with quick and convenient ways to share information, which means employees may be eschewing more established means of corporate communication like email in favor of messaging sites, especially when they are using mobile phones.

“For employers, this means that information is traveling quickly outside of typical corporate controls,” Daniel Schwartz of Shipman & Goodwin LLP said.

“It’s important to understand when your information is not going through normal channels if you have a document retention policy or regulatory concerns like in the financial or health care industries, to make sure that your secure information is not being leaked through the faucet that is instant messaging apps,” he said.

There’s lots more good stuff in the piece including a tip from Delaware Employment Law Blog’s Molly DiBianca about apps like Secret too.  Never heard of them? You should because confidential information and rumors are being spread.

Check out the rest of the article for additional tips, including this quote from Adam Forman, a great labor lawyer out at Miller Canfield as well.

“Employers need to understand that the days of simply putting up a firewall at work and having that protect you are over,” said Adam S. Forman of Miller Canfield Paddock & Stone PLC. “You need to survey what’s out there and figure out where you’re vulnerable. You need to understand the scope of today’s issues — college kids are not on Facebook anymore, and these are your employees.”

Have you heard of Justine Sacco?

If you’re on social media, it was hard to avoid over the weekend. She was the public relations professional who posted an offensive tweet on Friday before boarding a plane to South Africa.

Never mind that she had only 200 or so followers when she made the tweet.  By the time she got off the plane, a firestorm had erupted on Twitter that was arguably unlike anything that we’ve seen in some time.

Boing Boing has a detailed account here, but in case you missed the story, here’s the basic outline:

As she embarked upon a long flight to Africa, PR staffer Justine Sacco issued this tweet. At best a darkly ironic self-deprecation that could never fit into 140 characters, it resulted, within bare minutes, in an internet-wide scandal. Even as the plane is still in the air–Sacco presumably oblivious–there [was] a hashtag, #HasJustineLandedYet, a parody account, @LOLJustineSacco, a fake movie poster, and, God help her, a whole entire New York Times article, replete with a stunned disavowal from her corporate employers.

The meme was incredible and fueled by the fact that she was on a long flight — with no internet. By Saturday, Sacco was fired.

Continue Reading Offensive Tweets and Twitter Justice: The Tale of Justine Sacco for Employers

Last week, I had the opportunity to speak to the Connecticut Technology Council’s IT Summit.

The panel discussion, entitled “Social Media: How to Manage Your New Digital Workfoce and Your Workforce ‘Friends'”, explored the impact of social networking on how businesses communicate with customers and employees, and how to reconcile the need for security and control with the desire to remain flexbile and competitive.

My law partner, Glenn Cunningham, served as panel moderator and Christopher Luise, executive vice president at ADNET Technologies, LLC joined me.

One of the questions that was raised during the IT Summit was one that I sometimes hear.  Paraphrasing, the question was essentially this: “I think social media is just a waste of time for employees.  There is no return on investment for it. And what am I supposed to do with a young employee who spends four hours on Facebook each day?”

There’s a lot of subtext to a question like this and it would be easy to discount the person’s views as someone who just “doesn’t get it” with social media.

Continue Reading “My Employee is on Facebook Four Hours a Day. What Do I Do?”

Today, I spoke at my firm’s semi-annual Labor & Employment seminar on seemingly everyone’s favorite topic lately: social media. We had a huge crowd today and had a lot of audience participation.  I know I speak for my whole department in thanking those who attended.

One of the topics that several people spoke to me afterwards about was the notion of these new “disappearing” social media sites.  I touched on this a bit earlier this month with Snapchat — an app that allows people to send or receive pictures or videos that “self-destruct” after a few seconds.

But that’s only the tip of the proverbial iceberg.

Now, we’re starting to see social media sites that allow you to send “disappearing” messages and updates.

Take, for instance, an app called Ansa, which promises that you can “communicate off the record, so no trace of your conversation is left behind.”

Or a new app called Skim which “erases your messages as you read them… then they’re gone forever. With Skim, you can text your friends, knowing that it’s just like a conversation. No record, no regrets, no worry.”

(Strangely, both sites feature sample messages from an “Ashley” — might this be a clue that people named Ashley have a propensity to use these sites?)

As the founder of Skim stated in a recent article on Techcrunch: “Disappearing content is a growing trend, yet nobody seems to do textual messages very well. At Skim, we have a design-first mentality. Simplicity and beauty is incredibly important, but even more so is security,” said co-founder Jordan Singer. (h/t Ryan McKeen)

For employers, however, all of these new sites — from Snapchat to Skim — should give employers a big headache.  How will you deal with document retention obligations in lawsuits? How do you keep track of these? What if these sites are used for cyberharassment of other co-workers?

In today’s seminar, I discussed how there aren’t a lot of great solutions. The days of simply putting up a firewall at work at over.

Instead, employers need to survey their vulnerable areas, develop a policy, educate employees about the parameters of the policy and monitor how the policy is working.

Most of all, employers need to understand the scope of the issue we are dealing with today.  After all, college kids aren’t all on Facebook anymore — and neither are your employees.

 

 

 

Job Whisperer

It may be hard to remember, but during the first year of the blog in mid-2007 to 2008, there was barely a mention of social media and its impact in the workplace.  Just a single reference in January 2008 noting that with sites like Myspace (!), “employees from around the country can share information instantly, making it much easier to figure out if there are trends associated with the layoff that may give rise to a lawsuit.”

Then, in September 2008, I talked about how employers were considering using those sites to “screen” potential candidates for employment.   I suggested against it at the time.  But what I also suggested back then is that employers needed to recognize the sites’ growing influence.

Yes, some college grads put some boasts on their site, but Facebook has moved so quickly into the mainstream that many people are using it as a communication tool, far removed from their college years.

That was just five years ago, but really, it feels so much longer than that.

Flash forward to today.  91 percent of American own cell phones.  63 percent of those owners use their cell phones to go online, mainly through apps used on devices like the iPhone.  As a September 2013 Pew Internet study found, a majority of Americans “now owns a smartphone, and mobile devices are playing an increasingly central role in the way that Americans access online services and information.”

Social media accounts for a significant portion of that usage.  89 percent (!) of 18-29 year olds online use social networking sites.  Even among 30-49 year olds, that percentage is 78 percent.

But what sites are they using and how?

You’ve no doubt heard of YouTube, LinkedIn, Facebook and Twitter.  Maybe Foursquare and Google+ (poor Google).   And if you’ve been following the blog, you know that Instagram (a photo sharing site) and Vine (a video sharing site) are growing in influence as well.  But what about everything else?

When I spoke to a group of people last week, a few wore their ignorance of social media as a badge of honor.  But in my view, employers ought to understand the scope of the issue; they may not need to use all the sites, but it’s only when you understand how much is out there that you begin to appreciate the scope of the social media issue.

Take, for example, Whisper to which I referenced yesterday. A few people responded, “huh?” Continue Reading Snap(chat), Kik & Whisper: What Social Networking Apps Your Employees Are Using Today

For many years, employers set up firewalls at work that prevented employees from going to certain websites.

Didn’t want your employees shopping at Amazon? Block the site.

Didn’t want your employees posting updates at Facebook? Block the site.

But here’s the reality: Smartphones have made those firewalls meaningless.  Information, as I’ve said before, wants to be free.  Employers who attempt to block social media usage are merely putting fingers into the proverbial bursting dam.    Whether you recognize it or not, there’s a massive waterfall of information that is now flowing.

Am I suggesting employers give up? Hardly.  But there needs to be an acknowledgment by employers that social media and technology will continue to infiltrate our workplaces in ways we haven’t even begun to think about.  We need to think about a world where such usage is considered the norm.  How do we rebuild a workplace that is cognizant of these changes and also protects both the core values of the business and the secrets that your company has that allow it to have a competitive advantage in the marketplace?

On October 25th, I’m going to discuss these concepts further as part of a larger presentation my firm is giving on labor & employment law. The session that I will help lead is entitled, “Are You Ready for Instagram, Vine and All the Latest That Social Media Brings Into the Workplace?”

In the presentation, we’ll cover social media policy but also how employers need to address the evolving world of social media.  Ever hear of sites like Whisper or Snapchat? And what do you do when employees take their converations off of your servers and onto instant messaging apps?

Overall, we will address the latest developments in employment law and social media, and provide guidance to employers on dealing with this shifting landscape.  Download a brochure here.

Registration is free, but is done on a first-come, first-served basis.  So be sure to sign up before it fills up.

See you later this month.