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.

facebook81Could this place be real?  Or is it just a Disney World for work?  I mean, people don’t actually get work here, do they?

Those were my initial thoughts walking through the campus of Facebook on a recent trip.  It wasn’t the first time I visited — but its a changed world from even six years ago.  

I was kind enough to be a social guest of a long-time family friend and he invited me to have lunch with him and gave me a very unofficial tour of the campus.  It’s located in Menlo Park, California and has been the subject of many news articles.  

First off, I didn’t see any secrets and even if I did, I’m not about to talk about them on a blog. All my experiences were those that every other guest to the campus can see publicly.

But there were several things that were striking about the visit. First off, the campus is gorgeous. It’s a series of interconnected buildings with a pedestrian plaza in the middle. There’s a ping pong table, and a mini-library, and just about every amenity you could think of.  And when you drive up – there’s complimentary valet parking. (And trust me, I discovered there’s a strong no tipping policy!)

Then you walk into one of the many restaurants that populate the campus. Where are the cash registers? There are none, because breakfast lunch and dinner is on the company tab.  And GOOD food too — we had Texas BBQ for lunch.

And a walk through the offices shows open space surrounded by tons of small conference rooms. The ones I walked by were named after Muppets.

And don’t even get me started on the little snack bars on each floor — filled with every snack you could think of. They rotate them often.   Again, free of charge.

Why would you ever leave?

And that perhaps is the point. My own impression of the office workspace is of a place that is more than just work; it’s a place to socialize, to hang-out, and relax.  Don’t get me wrong — they work hard there.  The expectations it seems to me are just like every other workplace — get the job done.  But Facebook is also aiming for something more — collaboration on a massive scale.

Share the workspace and share ideas.

It’s remarkable.

And of course, entirely unrealistic of many businesses.  Many businesses simply can’t afford to feed their workers 24/7 — let alone create this kind of open space.  Perhaps it is not in the company’s culture. Or perhaps the weather is not particularly suited for the outdoor life.

And yet still, there are now thousands of workers going through this place (and, it should be noted, similar workplaces at Amazon, Apple, Google, etc.).  What happens when they leave? What workplaces will they create?

The workplace that Facebook is creating is setting new norms for what workplaces should look like. It’s still imperfect ; a recent Wall Street Journal article notes that it is still struggling with diversity despite incentives that it has established. But it is throwing a bunch of ideas at the wall and seeing what sticks.  How many of those ideas get transferred remains to be seen.

I do know one thing — if this really IS the future of work, I’d sign up for the adventure.

pokemonRecently, I had the opportunity to revisit a social media policy I had reviewed several years ago.  (Check back to this post from 2008 to see how far we’ve really come.) In doing so, I was reminded — once again — how quickly the tech world is changing and how policies need to continually adapt.  It seemed so quaint — with references to MySpace, Foursquare, and even LiveJournal.  No mention of Snapchat, Instagram, or Vine.

And then I thought of the technology news from the last week demonstrating the dramatic rise and use of Facebook Live and Pokemon Go.

Facebook Live is a capability to broadcast — live — from anywhere (at least with a cell phone connection) at any time.  It was used in dramatic effect in the shootings in both Minnesota and Dallas.

Pokemon Go is something different.  It is a brand-new mobile game app with social media capabilities (you can join a “team”) where users search the real world for virtual monsters that appear on your cell phone in an augmented reality way.  In just a week, it has nearly as many users as Twitter.

Both are going to cause employers big headaches in the months ahead — for differing reasons of course.

There’s no doubt that the rise of livesteaming apps is something new and revolutionary.  And your social media policy should definitely be updated to reflect that. Imagine your workforce broadcasting live from your office — all under the guise of engaging in “protected concerted activity”.  How should the employer react when such events are occurring in real-time?

A policy can help to provide some answers but it’s the exercise of thinking about what your response will be that can be just as helpful.

And then there’s apps like “Pokemon Go” — which are nearly unparalleled in their adoption.  We’ve already had our first firing related to Pokemon Go and that’s no doubt the beginning.  Forbes reports that employers are “nonplussed” with it.

But the response to this app is a bit easier.  If it interferes with an employee’s workplace productivity or is a drain on your resources, it’s appropriate to limit it.

If your policy hasn’t been updated in a few years, use the rise of new apps as an excuse to bring it up to speed.  You can’t keep up with everything but that doesn’t mean you should ignore them either.

And now, if you’ll excuse me, I need to go look for Drowzee.

(Photo credit: Imgur.)

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.

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

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.

As our big Labor Day weekend kicks off, it seems appropriate to bring back a “labor” topic, particularly when mixed with one of our favorite topics here: Social Media.

Today, my colleague Jarad Lucan returns with a case straight out of Connecticut with national implications.

As most readers of this blog have read before (here, here, here — you get the point), Section 7 of the National Labor Relations Act gives employees the statutory right to “improve terms and conditions” of employment or otherwise improve their lot.

The NLRB has said in recent years that this right includes the use by employees of social media to communicate with each other and the public for that purpose.

Late last week, the National Labor Relations Board issued a decision giving a big thumbs up to employees who use the “Like” option to endorse a workplace comments on Facebook. . . .well, sort of.

This isn’t the first time that the issue of a Facebook “like” has made legal headlines. A federal court case last year ruled that a Facebook “like” could be protected speech in some instances under the First Amendment, for example.

And I should point out that the new NLRB case involves a number of interesting issues related to employee use of social media and employers regulation of that use. Because this post only addresses the NLRB’s approval of the “Like” option as part of protected concerted activity, I encourage readers to take a look at the decision in their spare time.

In short, 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!!!!”

LaFrance also posted about the accounting error, blaming it on the owner of Triple Play and stating that “It’s all Ralph’s [the owner] fault. He didn’t do the paperwork right. I’m calling the labor board to look into it bc he still owes me about 2000 in paychecks.”

Following this second post, Spinella selected the “Like” option under the LaFrance’s initial update. The discussion continued with several comments being posted, including one from LaFrance referring to Ralph as a “shady little man” who probably “pocketed it all from our paychecks.”

This Facebook discussion was brought to the attention of the owners of Triple Play who subsequently terminated Spinella because he “’Liked’ the disparaging and defamatory comments,” including LaFrance’s references to Ralph and his pocketing of money.

The NLRB, however, determined that Spinella’s termination violated the Act.

According to the NLRB, Spinella merely “Liked” the comments related to Triple Play’s alleged inability to complete tax paperwork correctly and failure to pay a former employee’s wages.

The NLRB rejected the employer’s argument that Spinella’s “like” related to the comments about Ralph, stating that it interpreted Spinella’s “Like” solely as “an expression of approval” of the initial status update. Had Spinella wished to express approval of any of the additional comments deriving from the initial status update, he could have “liked” them individually. He did not.

The NLRB, therefore, found that, even if the “shady little man” and “pocketed it all” comments were defamatory and therefore unprotected, Spinella’s use of the “Like” option during the discussion did not attribute those particular comments to him and he could not be terminated because of them.

Although this is the first case issued by the NLRB addressing an employee’s use of the “Like” option on Facebook, it appears that the NLRB’s position is that “Liking” comments that amount to protected concerted activity is itself protected concerted activity. Frankly, it’s not altogether surprising given the recent cases decided by them.

But whether “liking” comments that are defamatory (i.e. maliciously untrue or made with knowledge of their falsity) or that publically attack an employer’s product or services is protected is a question left for another day.

So, feel free to “like” this post. We won’t hold it against you.

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.”

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.

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?”