IMG_8532 (2)You work for a privately-owned multinational conglomerate with a high-profile CEO who loves Twitter and can’t stop talking.

And that CEO, outside of work, has been critical of lots of people. In doing so, however, the CEO has made particular comments about certain women, comments such as:

And there’s more where that came from too.

That said, some people think the CEO is a feminist.  And within the confines of the company, they would argue, he put women in charge of construction projects before it was “fashionable” to do so. And, some would argue, the organization has more female executives than male executives and a large number of these women are paid more.

The question is: Has the CEO created a hostile work environment for women at the workplace?

Of course, we can’t answer this question in a vacuum, because the CEO described above is Donald Trump.  And this isn’t a pure hypothetical; he has reportedly made all of the above statements either recently on the campaign trail or in other public statements.

Some have already jumped into the fray on this issue both here and here taking issue with his behavior.

But frankly, taking aim at The Donald here on whether or not his conduct creates a hostile work environment at his own workplace is a fruitless exercise. Eventually, some enterprising lawyer will take aim at the organization for his comments and he has plenty of lawyers to defend the organization.

Rather, his comments bring up a point that is relevant to other corporations. I cannot imagine another organization that would relish having such comments made by their CEO in almost any other context.

Yes, the equal opportunity offender — that is, the “horrible boss” who speaks poorly of everyone — can work as a defense in cases. But that’s an argument for a court and won’t prevent the lawsuit from being filed with the accompanying publicity that comes with it.

And so, if your CEO or another senior manager is suddenly spouting “truths”, perhaps its best if you remind him or her that there are, in fact, rules for the workplace.  And that your CEO is not Donald Trump.

Of course, in Trump’s case, perhaps there’s a third option: maybe he’s just an entertainer in a “reality” show about running for President.  As a character, maybe he’s just playing a role of a candidate who speaks the “truth” like the character playing the President in the 1993 movie “Dave.”

That might still give him an out to disclaim his statements.

Needless to say, your company and your company’s CEO won’t have that option when faced with a hostile work environment claim.

yankees-300x300On Friday, at my firm’s annual Labor & Employment Law seminar, I’ll be talking about the NLRB and Employee Handbooks with my colleague, Chris Engler.  Among the topics we had planned to discuss was the ongoing Triple Play Sports Bar & Grille case that I had previously posted about here and here.

So of course yesterday, the Second Circuit released an long-awaited decision on that very case. And it’s a strikeout for the employer.

The case involves a mix of old and new concepts. Old: Employees have the right to improve the terms and conditions of their workplace — so called “Section 7” rights to protected concerted activity under the National Labor Relations Act, even if they are not “unionized”.  New: It applies to Facebook and other types of social media.

And now, even to Facebook “likes”.

In the case, Jillian Sanzone and Vincent Spinella, two employees of Triple Play Sports Bar and Grille, located in Watertown, discovered that they owed more in State income taxes than they had originally expected. One of the employees discussed this issue with co-workers, and complaints were made to the employer.

The discussion continued on Facebook, and a former employee, Jamie LaFrance, posted the following “status update” to her Facebook page: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money . . . W[*]f!!!!”

Continue Reading Employer Strikes Out; Facebook Likes Protected by NLRA, Says Second Circuit

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.

Since the last time I published a list of labor & employment law lawyers to follow back in 2012, there are just a bunch of you out there now using Twitter. (And I presume you’re already following me @danielschwartz, right?)

So, it’s probably time to update my list of labor & employment law-related people to follow on Twitter.

But I’m going to cheat, a little.

Photo Courtesy Library of Congress

Frankly, in looking over my lists from 2009 and 2012, I have a lot of repeats.  So, it should be obvious that some of those should be followed regardless of whether they are on a top 10 list.  (And really, anyone from those lists should be followed too even if I don’t re-mention them here.)So here are four of my “of course, you should already be following them” list:

  • Jon Hyman (@jonhyman) – Publisher of the Ohio Employer’s Law Blog. Great insights.
  • Molly DiBianca (@mollydibi) – Runs the Delaware Employment Law Blog with a wicked sense of humor and a self described “genuinely nice person”.
  • Eric Meyer (@eric_b_meyer) – Unfortunately a member of Red Sox nation but provides an irreverant look at employment law on The Employer Handbook.
  • Seth Borden (@SHBorden) – While Seth writes a bit less for Labor Relations Today then he did a few years ago, he has a particularly strong knowledge base in labor law.  Of course, as with Eric, he has a fatal flaw in his love of the Sox, but so be it.

Here are 10 more people to follow on Twitter for labor & employment law.

  1. Robin Shea (@robineshea) – I said back in 2012 that she was perhaps the “best lawyer you’re not following online”.  Still holds true.  Writes the Employment & Labor Insider which is a must read.
  2. Jeff Nowak (@jeffreysnowak) – Jeff knows the Family Medical Leave Act.  Follow him and you will too.
  3. Chai Feldblum (@chaifeldblum) – A self-described “first out lesbian EEOC Commissioner with hidden disability of anxiety disorder”, she provides extraordinary insights into the workings of the EEOC.
  4. Jason Shinn (@jason_shinn) – Jason write the Michigan Law Employment Advisor and consistently nails it. His last article on why delaying employee terminations is inevitably bad for the company is a perfect example.
  5. Paul Callaghan (@paulcall1) – An employment lawyer from over the big pond in London, Paul travels quite a bit to the United States and thus has a different perspective than most.  Plus, I’ve met him at several conferences and like the guy too.
  6. Walter Olson (@walterolson) – I’m kind of surprised I haven’t listed him before. He’s not strictly a labor & employment law person, though his well-known Overlawyered blog features the topic from time to time.
  7. Philip Miles (@philipmiles) – From the middle of Pennsylvania, Philip shares unusual employment law cases and interesting tweets too.
  8. ABA Labor & Employment Law Section (@abalel) – I’ve been involved with the section for a number of years and have met a number of terrific people that you should also be following too (@evilinheels, @adamsforman, @employeerights).   They may not tweet as often as some others, but I can attest that they are highly knowledgeable in the employment law area with a sharp wit as well.
  9. Mara Lee (@MaraLeeCourant) – This one is for the local folks.  Mara covers business and labor issues for the Hartford Courant; one of the few people in the state who is looking at the big picture.  I should also mention that Steven Greenhouse (greenhousenyt), who covers labor issues for The New York Times, is worth a follow as well.
  10. Eric Gjede (@egjede) – A business lobbyist, Eric represents employers’ interests for the Connecticut Business and Industry Association at the legislture on labor & employment law issues.   Bonnie Stewart (@CBIAbonnie), Cindy Panioto (@cbiahr) and others at the CBIA also  tweet noteworthy information for employers in the state regualrly.

And if you’re looking for something a little different, my firm (@shipmangoodwin) and one of my partners, Ross Garber (@rossgarber), also deliver high-quality tweets of interest to people in Connecticut and beyond.

Finally, by the very nature of a list like this, I’ve excluded others.  I’m following about 350 people at the present time on Twitter. Feel free to look at the list for further ideas.

I have no doubt I’m missing a few.  Who else should we be following or mentioning? Who have I forgotten? Feel free to add your favorites to the comments below.

With all that was going on with the holidays, my colleague Peter Murphy reminds us that ownership of work-related social media is not an issue to take lightly.  Why? Well, let Peter take the story from there….

Back in May, Dan posted some very helpful advice to employers about ownership of work-related social media accounts. 

In short, clarifying corporate ownership of the account, ensuring that more than one employee has access to the account, and documenting such arrangements can go a long way to avoiding disputes if and when employees leave.

Although this blog is widely read and award winning in the United States [editor’s note: Peter’s flattery will get him everywhere in the office], apparently not all employers in Europe are reading it yet.

A restaurant in Britain, The Plough, fired its head chef in December, shortly before Christmas.

Although the restaurant terminated his employment, it did not terminate the Chef’s access to the restaurant’s Twitter.

In fact, it appears that the Chef is the only person with access to the Twitter account, as the Chef’s disparaging post-termination tweets are still on the account’s homepage three weeks after his termination:

Not only was the Chef allowed to disparage the restaurant to its own customers on Twitter, but his tweets also gave the restaurant unwanted attention all over the Internet.

People reading these tweets don’t know the circumstances behind the Chef’s termination, and his termination could have been very justified.

But because the restaurant failed to control its own social media account, the Chef’s tweets are setting the narrative.

Not a recipe for success.

Employers already use employment agreements, employment policies, and separation agreements to control messy post-employment situations. As this case demonstrates, clearly defined social media practices and policies are another important tool for controlling such situations.

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

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

Five years is a long time.

In the time span of the Internet, it might as well be a lifetime.

And Justice For All

So, after five years of doing this blog on nearly a daily (ok, business daily) basis, it’s time for a change.

Now, I’m not retiring like other bloggers have.  But it’s time to recognize that the world of reporting on employment law has changed so much since I started the blog in September 2007.  

Back when I started, there were a handful of us.  Now, there are dozens of employment law blogs chasing the same nugget of news; a few are great, some are good, and many others are just chasing Google’s SEO approval.

Five years ago, the news competition was a printed Daily Labor Report by BNA and, well, not much else.  A lawyer who blogged could often be the first to report on a case simply because there was no one else out there.

Even then, given the slowness of the news cycle, there was time for a bit of analysis.  Twitter wasn’t heavily used and Facebook was still mainly for college kids. (I didn’t even reference social networking’s impact on employment law until 2008.)

Now, Twitter demands an immediate post on what is happening THIS MINUTE.  And Facebook has turned into key part of people’s lives.  And don’t get me started on the rapid rise in the use of smartphones. 

(For more on this phenomenon, see this article in The New York Times).

I was reminded of this last fall when I was on vacation and the Connecticut Supreme Court came out with a decision on how many Connecticut-based employees a company needed to have before being covered by Connecticut’s FMLA.

I got an e-mail from a friend and lawyer letting me know about this and hoping I would blog about it.  And there I was, feeling compelled to update the blog about it — while waiting on line at Disney World, using my smart phone.

A lawyer practicing at a (great, if I may say so) mid-size Connecticut-based law firm is not a news reporter.  We have clients to care for, for one reason. 

And family is another reason. One of my loyal readers — my mother-in-law — has been ill of late and life requires some changes to meet her (and the rest of my family’s) needs.  

So, it’s time for a change.  Here are a few things you will see this year (at least if I can hold my resolutions down):

  • 2-3 posts a week, scheduled to come out around mid-morning.  I still need to play around with the days but you’ll start to see more of a regular pattern soon.
  • The posts will continue to have a primary focus on items of interest for Connecticut employers, recognizing that some stories of national significance have a local impact too. But the ordinary NLRB decison from Arkansas is just not something this blog can or should cover.
  • The posts will still try to answer the most important question for employers: How does this thing (a court decision, a new bill) impact employers? 
  • In place of additional posts, particularly on breaking news, I will be making more use of this blog’s Facebook page.   Facebook has taken a more prominent role for businesses and its time to move it into a more central position to keeping updated.  This blog will not chase the search engines for approval simply by having meaningless breaking news posts.
  • In addition, if you haven’t been following me on Twitter, now’s a good time. There’s already 3200 (!) of you doing so, but the more the merrier.  I tend to send Twitter updates a few times a day, mainly on Connecticut or employment law-related stories.  (But Red Sox fans be warned: Come baseball season, you may also see a Yankees post mixed in, in the evening or weekends.)
  • If you like something a little more different, we can also connect on Google+.  I’m planning on starting some employment law Hangouts later this month.  Watch for more details later this month.  You may also see a few more videos and webinars in place of posts too.
  • And finally, if you’re still a little tentative about social networks, we can always connect on LinkedIn.  (And if that is too much, well, then there’s always just the blog.)

Each of these outlets provides a more efficient way for you to keep updated on the information you’ve gleaned from this blog.   Put another way, this blog will serve as a home base for more analysis and leave the breaking news for the social media platforms. 

Change is never easy, but hopefully these changes will bring you the information you need for your business in a more direct way without having to rely on longer-form blog posts each day. 

Let me know what you think in the comments. Suggestions are always welcome.  Criticism is accepted too.

Happy New Year.

In my presentations on social media this year, I’ve talked a bit about the Phonedog v. Kravitz case where an employer sued a former employee who continued to use the company Twitter account he had started.

Are Your Accounts Under Lock & Key?

When the employee left, he merely changed the Twitter account’s handle to his own name and took the 17,000 Twitter followers with him. 

The case was just settled this week for undisclosed terms; the Employment Law Daily blog does a good job recapping the lessons learned from that case here. (For another perspective, also check out the Social Media for Law Firm post on the same subject.)

One thing we DO know though is that the employee is keeping the Twitter account, which now has over 27,000 followers. 

What’s the Takeaway for Employers?

Consider requiring employees who use social media as part of their job to agree that the company owns the account.  Employers could, for example, ask for login and password information on specific accounts too.

One practical problem though is that some of these accounts sometimes blend the personal and professional, as the Trading Secrets blog has noted, so its important to have clear rules up front.  The Trade Secret Litigator blog has some more tips as well. 

Earlier this fall, another case, Eagle v. Morgan, also talked about this notion in the LinkedIn context.  The Employee Handbook blog did a nice summary as well.   Expect more suits like this in 2013.