Connecticut Employment Law Blog : Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

We had a great turnout and reaction to the presentation yesterday at the CBIA Human Resources Conference in Rocky Hill. My thanks to all who sat in our packed room and the great questions that everyone asked.

A few observations from the conference:

• The lines between work and personal activities continue to get blurred and employers are struggling with this. Even where there is no relationship apparent between the two, blogs and Facebook activities are causing or have the potential to cause disruption at a company.  Figuring out where your company will draw the line is important to determining what level of social media activity your employees will be allowed to engage in.  (For more on this topic, see this excellent post from this morning from the Delaware Employment Law Blog about the employee who was fired for his sex-themed blog.)
• As a result, developing a social media policy or a set of guidelines may assist your employees in what is permissible and what isn't.
• Connecticut does have a statute, Conn. Gen. Stat. 31-51q that gives private employees some limited First Amendment protections to free speech when that speech is a matter of "public concern". An unanswered question thus far then for employers is whether an employee's conduct on social networking sites could be seen as being protected by this statute.  There haven't been any cases about this...yet.
• Another interesting topic of discussion was whether an employer can require an employee to set up their Facebook page to have strong privacy settings.  I don't think a hard-and-fast rule can be applied; clearly where the person's position requires some use of Facebook and where there are teens involved (camp counselors, child-care workers), it seems a much more reasonable request, than say for a fast-food worker.  But feel free to comment below whether you think employers can dictate the privacy settings employees need to use on their personal Facebook pages.

 

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• I'm not sure what would possess any attorney to blog, but if you do, don't divulge confidential information or berate judges
• I don't use Facebook, but I understand that one of the purposes of Facebook is to collect the most "friends" as you can
• I understand there is a lot of "serial poking" going around on Facebook
• So when you've Facebooked another person...
• Employers need to be careful using social networking sites to find candidates because you're self-selecting...
• Social networking is really just about promoting yourself

So, where was I? Attending the Technology in the Practice and Workplace Committee Symposium in New York City, as part of the ABA Labor & Employment Law Section.  (Ironically, today, I visited Facebook - which I'll report on in the upcoming days.)

And who said these comments? Each of the comments above were made by speakers (namely attorneys) who practice in the labor & employment law field, some at big firms, some at small ones.  

All of them said proudly that they don't use Facebook (or Twitter, for that matter) and see no reason to change.  In short, they wore their absence from Facebook proudly on their sleeve. 

(To be fair, there were a number of other speakers and attorneys who attended who said that they did use social networking and social media tools, including the General Counsel for Lincoln Center, Inc.) 

All of which raises the question: Can an attorney provide advice to clients about social media when they don't use it themselves?

Before I answer the question directly, consider this: Attorneys provide advice to clients on areas that they don't use all the time. Medical malpractice attorneys often counsel doctors on issues relating to best practices in various areas of medicine. And patent law attorneys provide guidance on complex engineering issues all the time.

But what these situations have in common is this: The attorneys have spent time trying to understand the issues that they are facing.

So to answer my own question, no, attorneys need not use social networking in their daily life to provide guidance to employers but, in my view, they better start taking the time to understand it.

What's the business case for doing so? There are over 400 MILLION people using Facebook. Even if only one percent used Facebook for business purposes -- that's over 4 million people right there. (Obviously the numbers are much higher than that).

Beyond that, though -- and what my visit to Facebook today confirms -- is that technology isn't standing still.  Companies like Facebook are looking for more and more ways to create a "social web" and increasingly the public is engaging through that medium.  

Time waits for no one. Even if you're still skeptical about social media, isn't it time to learn more about it? Here's a primer.

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At the Connecticut Bar Foundation's Law & Technology Symposium on Friday at UConn Law School, we spent some time talking about social media and the power of social networking.

Many were convinced; some were not. For employers, it's still a scary subject. The loss of control and of messaging is just too much for many employers to still deal with.

For those who are still skeptical, let me relay this story:

This morning, I stopped into the local coffee/donut shop, one that has been around for 50 years and is surviving despite the Dunkin Donuts & Starbucks that pop up. 

It's quaint, with hand-written signs around and counters in a semi-circular fashion dotting the place. It has no website (gasp!).  

Sitting on stools at the counter, people were sharing the latest goings on with each other. None seemed to be there with others, but rather to talk in the company of "strangers".  Talk of the Masters. Of local budgets and politics.  Of stuff.  

As I was waiting, one person stopped me to say hi and congratulate me for my recent inclusion in Hartford Magazine as one of the area's "Top Lawyers" in Labor & Employment law.  I don't run into him often, but I thanked him, asked briefly how he was doing, got my order and headed back home. 

For me, and countless others, the use of LinkedIn, Facebook, Twitter (and now, Foursquare), are all modern day re-creations of this local donut shop.  You stop by, see a few people you might know, say hi, talk about Lefty's unbelievable round at the Masters on Saturday, and then move on to some place else.  

If you stop by a social networking site (or the local coffee shop) and don't interact with people, it'll just be a fairly boring place.  You might just think its a place to get donuts.  But if you persist, and take the time to listen and, on occasion, to interact, you can discover that it's more than that.  It's a place to deepen the relationships you have with real people and maybe meet some people who share a common interest.

In pulling together speakers for the symposium, I drew on my experiences -- both through social networks and otherwise. Some relationships have originated online -- like Bob Ambrogi, an attorney in Massachusetts who often writes on media law issues.  Or Ryan McKeen, who writes A Connecticut Law Blog.  Or Susan Cartier-Liebel, who runs the Solo Practice University.  

Some have been forged through actual working relationships, like Victoria Chavey -- who I used to work with. Or David Atkins, a partner of mine at Pullman & Comley.  

And some have been forged through a combination of both in-person and online, like Brent Robertson and Kevin O'Keefe, who I've chatted with more online, than in-person over the years.

In all of these instances, social media though has contributed to the relationships.  We share a story of interest, or a personal achievement.  We interact, much like the people at that donut shop.

The idea that social networks are "just" for online interaction is a fallacy. It is a place where the connections you have can been broadened, deepened, and cemented.  It is not a solution, per se, but a tool that can be used to achieve goals and outcomes.

If you still think your local donut/coffee place is just a place for donuts, then perhaps online social networks will never make an impact for you. But if you take the time to stop by, listen, and interact, you might realize that your local hangout (and that online social network) can be so much more.

For employers and law firms, banning the use of social networks by employees, can deprive your employees of the connections that they have on an every day basis.  Having a social media policy so that employees can know the limits of their usage, can help bring the benefits of social networking to your workplace without the total loss of control. 

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Early on when writing the blog, I came across an issue that was so exciting to write about that I spent an evening crafting it up.  It had links, pictures, and was well-sourced.

But then I discovered that the issue involved a client of the law firm.  Uh-oh. It was then that I decided it was time to set up my own set of internal rules that I would try to run the blog by.

I summarized that process in an entry entitled -- "The Blog Post I Didn't Publish -- Will Your Employees Do the Same?" nearly 30 months ago.

In the past three years, I've worked hard to play by those parameters. Those include: 

• No discussions of cases I'm working on or that others from the firm are working on, without explicit client approval.
• No references to clients, again, without approval from the client first
• No use of confidential or "private" (i.e. not protected by privilege but still not public) information.

There are other informal guidelines that I also try to follow including the concepts outlined in IBM's Social Media policy about adding value and being respectful.

Why do I bring this up again now? Because there have been two stories that I've been asked to write about by some readers in recent weeks.  They've made national headlines and it would be natural to write about those issues.  But I've had to explain that those matters fall within the guidelines I've established for myself and, as a result, I would not be writing about it.

A few people seemed a bit surprised by that.  As one said, "You have RULES for your blog?" Well, yes I do. Or try to.

Which leads me to this: Do your employees know the rules or guidelines that they are to play by when it comes to using Twitter, Facebook, or other types of social media? If you're not confident about the answer to that question, perhaps it's time to think about some guidelines to share with them.  Otherwise, you leave it to their own discretion, which may -- or may not -- be the same as your level of discretion.

Need a place to start? Compliance Building has a wonderful list of 150+ guidelines for your consideration.

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Let's face it: There are still way too many people who think social media and social networking sites are a fad and time-waster.

I mean, how else do we explain the thousands of companies that have strict firewalls at their companies to prevent employees from using these sites.

(And if you think that because you have a firewall, your employees aren't accessing these sites, think again. With iPhones, Droids and other smart phones, employees can do it all anyways if they have one of these devices.)

When I tell people about one oft-repeated statistic, it always seems to perk up their ears: If Facebook were a country, it would be the fourth-largest country in the world. 

Yes, Facebook has over 350 MILLION users.  They can't all be teenagers and college kids.

That's not to say that companies ought to open the floodgates and let employees spend all their time playing Bejeweled Blitz or Mafia Wars. (If you don't know about them, consider yourself lucky.)  

But I do think the time has come for companies to start thinking about these issues.  Ultimately, many may want to implement policies and practices that can take advantage of all that these sites DO have to offer and providing employees with needed guidance about what they should and should not be doing with them at work. 

LinkedIn, for example, has become a huge resource for companies for recruiting and hiring. And Twitter may be a great tool for customer service.  

Yes, it may turn out that for some employees, there are very few practical uses of these sites in their day-to-day jobs.  But that doesn't mean that employers shouldn't seriously look at these sites. 

I've covered this extensively before, but two posts over the last week or so, are great guideposts that employers can use to benchmark where they are and where they'd like to go.

• A Law.com article suggest that employers craft a policy that has "distinct goals that take into account the nature of the company and its workforce."  It then provides a number of factors and issues for employers to consider. It echoes what I said at a presentation recently: There is no one size fits all policy; figure out what the business goals are of the company and align your policy to best meet those goals.
• But even better, Doug Cornelius -- of the excellent Compliance Building blog -- has compiled a list of 132 Social Networking policies for employers to mix and match.  It's a terrific resource and should give employers many ideas on how best to craft their policies or guidelines.

Employers have legitimate reasons to be concerned about employees using social media and social networking sites, particularly for non-work related issues.  And there are legal risks associated with these sites are still being analyzed. But ignoring these sites in the hopes that your company will be immune from their spread, is repeating the same mistakes that companies made years ago when e-mail was introduced. 

And we all know how that turned out.

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My thanks to the Human Resource Association of Greater New Haven for the invitation to speak to that group last week on the topic of social media and employment law.  HRAGNH is an affiliate of SHRM and with nearly 60 attendees, we had a packed house for the event.

When I've given such talks in the past, I've always been a little disappointed that more people aren't using social networking tools for their job searches or for recruiting talent.

But I had no such disappointment here -- I'd estimate that about 90 percent of the crowd was already using LinkedIn and Facebook for business or personal use.  (Twitter trailed behind considerably and just one brave soul was using Google Wave). 

In fact, in my conversations with attendees, I was struck by the consistent two-fold message that recruiters and human resources professionals conveyed about social networking sites.

First, if you're a job seeker and aren't on LinkedIn, you might as well be invisible because you aren't going to pop up when companies are looking for candidates.

And for employers, if you don't have an active online social media presence and aren't using LinkedIn to find candidates, you might as well be invisible because you don't exist to many qualified job seekers who are looking for companies that understand technology and are utilizing it to gain a competitive advantage. And you aren't going to be finding talent that can help your company.  

Several attendees were quick to note that some companies still needed some convincing about the utility of using social media for human resources purposes.  For example, many of them are fearful of the use of LinkedIn Recommendations. 

In tomorrow's post, I'll discuss the use of LinkedIn recommendations further and take a fresh look at the subject that I covered over the summer. 

in the meantime, the informal survey of HRA members shows that social networking has not only made inroads, but has definitely moved towards the mainstream.

 

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Thanks to all who joined us at today's webinar that looked at the employment law ramifications of employment law.  We had over 100 people sign up for this session.

For those who were unable to join us, you can download a variety of materials related to the webinar. They are:

• The powerpoint presentation;
• The recording of the entire webinar presentation;
• A link to an excellent primer on using Twitter;
• A link to a model social media policy used by IBM;

Notably, about 30 percent of the webinar attendees did not use any social networking site and many reported that their companies still restricted employee access to such sites in some way (though notably, some companies have embraced it fully).

What site did most participants use? LinkedIn (though Facebook ran a close a second) with 61% acceptance.  About 25 percent of webinar participants used Twitter (which may be a case of self-selection, since I posted about the webinar on Twitter in the first place.)

Our monthly webinar series continues the second Wednesday of every month. Next up in September will be a look at the FMLA laws, featuring a guest speaker from the Connecticut Department of Labor. Full details (including a signup) will be available soon.

(Please note that the materials available for download are copyrighted by my law firm; if you would like to use such materials in the future -- beyond Fair Use -- please make such request in writing.)

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A fascinating article yesterday in Law.com entitled "Are Social Networking Sites Discoverable?" is well-worth a read to any company involved in litigating against former or even current employees.

While the authors write in the context of a product liability case, the premise and subject is equally applicable to claims involving employees as well as the conclusion that information on these sites is likely discoverable:

Although these sites provide users with a sense of intimacy and community, they also create a potentially permanent record of personal information that becomes a virtual information bonanza about a litigant's private life and state of mind. The converse thus becomes the moral for litigation counsel -- this new generational fount of potentially discoverable information should be high on the list of priorities when evaluating a new matter.

As a result, the authors suggest that defense counsel use some of these practice tips including running searches on the individuals and witnesses and investigating whether any of the key players use social networking sites.  And if so, ask for information about postings and make a request that such information be preserved. 

I'd add to the list of to-do items, a consideration of a subscription to a site like Spokeo.com.  How does it work? Enter in a person's e-mail address, and the site will conduct a search (a la Google) of several dozen social networking and information-sharing sites.  Thus, so long as the person hasn't set their privacy settings to "high", you can find information about the person's accounts with Amazon (shopping), Flickr (photos), LinkedIn (professional social network) and Myspace (largest social networking).  Importantly, all this information is publicly available to search engines: it's just that often times people don't think it is.

The law in this area is still developing, but some of the same discovery rules still apply: Information can still be sought so long as it is likely to lead to the discovery of admissible evidence. And information that is publicly available on the Internet (through Google searches or otherwise) is still fair game -- much like old paper files from government resources.

So, as companies defend against discrimination claims, they should not forget that looking at social networking sites like Facebook or MySpace may provide lots of information about the person's friends, opinions and views. 

You might even find a comment in which the employee talks about the lawsuit.

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Sometimes I feel like a broken record (though in today's world, perhaps that should be updated to "corrupted music file").  For a while now, it's been apparent to most of us that employees continue to do silly things with e-mail and their social networking pages. 

Add a recent case in Connecticut to the list of cases where individuals are fired for inappropriate conduct on MySpace or social networking page.  (For a post on the use of social networking sites for background screening, click here.)

In Spanierman v. Hughes, 2008 U.S. Dist. LEXIS 69569 (D. Conn. Sept. 16, 2008) (download here), a teacher at an Ansonia, Connecticut high school created a MySpace page, ostensibly "to communicate with students about homework, to learn more about the students so he could relate to them better, and to conduct casual, non-school related discussions."

A full description of the case can be found at MediaShift, a PBS production: 

One of Spanierman's school colleagues became concerned about the page, which she said contained, among other things, pictures of naked men with "inappropriate comments" underneath them. She was also concerned about the nature of the personal conversations that the teacher was having with the students, and she convinced Spanierman to remove the page, which she considered "disruptive to students." Spanierman subsequently created a new MySpace page, however, that included similar content and similar personal communications with students. When the colleague learned of the new page, she reported it to the school administration, which placed Spanierman on administrative leave and ultimately declined to renew his teaching contract for the following year. After hearings that he attended with his union representative and later with his attorneys, he received a letter stating that he had "exercised poor judgment as a teacher."

While the discipline of a teacher for conduct outside the classroom raised a number of legal issues, the District Court squarely came down on the side of the school  and the 41-page decision is certainly not lacking in notable (if unusual) details, such as a "poem" and a title of "Mr. Spiderman" on the MySpace page. 

The court also found that the online exchanges "with students show a potentially unprofessional rapport with students, and the court can see how a school’s administration would disapprove of, and find disruptive, a teacher’s discussion with a student about “getting any” (presumably sex), or a threat made to a student (albeit a facetious one) about detention."

As an aside, however, footnote 13 of the decision is a must-read for its straight-face approach to online etiquette indicating that the court was taking "judicial" notice that spelling and grammar are not always followed online: 

The court has not altered the contents of this or any other exchange taken from the Plaintiff’s MySpace profile page. The court takes notice that spelling and grammatical rules are not always closely followed in such casual or informal online exchanges, and that oftentimes certain phrases are abbreviated or expressed in a form of shorthand (e.g., “LOL” can mean “laughing out loud,” and “LMAO” can mean “laughing my ass off”). Furthermore, such exchanges often contain so-called “emoticons,” which are symbols used to convey emotional content in written or message form (e.g., “:)” indicates “smile” or “happy,” and “:(” indicates “frown” or “sad”). 

Ultimately, the case reinforces the fact that online forums, blogs and social networking sites remain a viable way for employers to discipline.  For employees, the lesson is clear: be careful what you write. And for employers, while you should be mindful that employees may have some rights on their right to publish materials online, there is still a role to be played when that conduct interferes with work. 

(After posting, I discovered a helpful post from the Delaware Employment Law Blog discussing this case as well.)

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Over the last couple of days, an interesting debate has emerged about whether employers should use social networking sites like Facebook and Myspace to "screen" potential employees.

One corner, supported by the Delaware Employment Law Blog, argues that there are some real and tangible benefits to using the sites, as long as they are used within reason:

I am in favor of this practice--so long as it is performed with certain safeguards.... Just as with criminal backgrounds, employers should not make a per se decision without first giving the candidate an opportunity to explain the results of the report and any circumstances surrounding the arrest and/or conviction. The same interactive discussion should occur if an employer finds something on the candidate's social-networking site that gives them concerns.

The other corner, supported by EmployeeIQ Blog, isn't persuaded.  He argues that just because employers are using those sites more often doesn't mean it is the correct approach.  He argues that background screening companies shouldn't even offer the service because it will expose their clients (in many cases, employers) to risk. 

Consumer Reporting Agency’s that are concerned about best practices don’t offer their services to trample on consumers’ rights or to expose their clients to unnecessary risk. There is no way to verify the accuracy of the information that is posted on these sites, nor is there a way to confirm that the applicant actually posted such information.

So who's right? Well, the answer is they both are.  While the Fair Credit Reporting Act may not apply in many cases to employer's review of social networking sites, use of those sites may raise issues of discrimination. For example, suppose that an employer reviews a candidate's site and sees that the applicant is African-American -- a fact that is obviously not apparent on a job resume.  If that employer makes a decision not to hire the applicant, they open themselves up to a claim of discrimination.  And frankly, an employer's hiring decisions should come down to who is best qualified for the job; knowing that someone's favorite show is Heroes may be interesting, but irrelevant. 

However, concerns about widespread misuse of the information appear to be -- at least so far --  overblown.  The risk of a lawsuit also appears negligible. There isn't an noticeable upswing on rejected applicants suing. In fact, such suits are unlikely because the applicant many times doesn't even know their social networking sites are being looked at. In the absence of information, the applicants simply move on to another potential employer.

And as for the "accuracy" of the sites, I would speculate that that too is a bit exaggerated. 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. In fact, a new study shows that Facebook's largest growing audience is anyone BUT college students.  And as more people use the privacy settings, peeking at someone else's information isn't going to be that easy anymore.

Overall, employers should tread very carefully in using social networking sites as a screening device.  There are very little substantive advantages to using such sites and there are several landmines employers need to avoid. While they may satisfy an employer's curiosity, the time-worn principles of checking references, conducting interviews and, if necessary, background screening, should typically satisfy most employer's need to hire the best candidate.

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These days, everyone seems to be jumping on the wage and hour bandwagon, predicting an endless stream of lawsuits for 2008, just as there was for 2007.  But just as mutual funds preach that "past performance is no guarantee of future success", I would argue that focusing too much on one trend, misses an opportunity to see another.

Indeed, having looked into my crystal ball for 2008,  I believe lawsuits involving reductions in force will be the latest trend to emerge in the next year. (And lest you think me too radical, I do think wage and hour lawsuits will certainly continue as well, albeit in lesser amounts as companies adapt to the litigation trend by addressing wage and hour issues preemptively.)

What is a reduction in force? Really, just a lawyerly way of saying "layoff". Back in the early to mid 1990s, lots of companies went through them.  And the number of lawsuits arising from those reductions went through a major peak in 1995 or so.

But these types of lawsuits rise and fall with the economy.  When the economy is good, lawsuits go down. When it's not so good, they go up. One reason is that when people can find another job quickly (i.e. the unemployment rate is low), then tend not to sue as much.

So what leads me to think that reductions in force lawsuits are on the horizon?

Well, for one, the unemployment rate numbers crept up over 5 percent on Friday.   The second, is that financial sector companies have announced major layoffs in late 2007, as a result of the mortgage crisis.  And when these people get laid off, more dollars are at stake.  And lawsuits typically follow the money. 

Moreover, with the overall economy in a stall pattern at best, companies will continue to resort to the cost-cutting measure they have used before -- layoffs. 

To be sure, the landscape involving RIF lawsuits has changed in the last 15 years; more companies offer severance packages (with accompanying separation agreements) and more companies do statistical analyses to determine if their RIFs have any statistical disparities among protected groups.  And layoffs for 2007, fell to their lowest since 2001. 

But harder times nearly always means more employment claims.

One more factor suggests to me that more lawsuits are on the horizon -- it's much easier for a few employees to band together than in the past. Previously, people would have to use their existing networks to find laid off employees to hear their stories (indeed, outplacement firms were a good source for employees looking to talk with other laid off workers). But now, with the rise of social networking sites, it seems only a matter of time before a group of employees will form a Facebook or MySpace page to compare experiences.  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. (Unions already have started marshaling the Internet, like this site for a group of Washington Post workers.)

This should give employers some pause; multiple plaintiff cases are always a challenge and expensive, and class actions (where attorneys fees could be recovered) could also be an attractive option.

Will this happen? Let's check back in a year. But absent the economy rocketing ahead in 2008, I don't think it's a stretch to see reduction in force lawsuits making a comeback.

Stay tuned.

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