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.

Interested in social media for business but wondering how to deal with a policy to manage it?

Central Connecticut State University’s Institute for Technology & Business Development is sponsoring an executive breakfast series seminar on October 3, 2013 from 7:30-9:30 a.m. on Social Media Policy.

I will be among the panel of speakers discussing the subject.  Along with me, will be:

  • Jessica Rich, Director of Operations and Employee Services at The Walker Group;
  • Suzi Craig, Director of Opportunity & Engagement at Fathom;
  • Rob McGuiness, Manager of E-Communications at Pratt & Whitney

In this presentation, we will be covering both the legal aspects of social media policy but also best practices for you and your company to follow.

The executive breakfast program is just $25 and open to the public.  My thanks to CCSU for the invite and TD Bank for its sponsorship of this event.

It will be held at the ITBD headquarters at 185 Main Street, New Britain, CT.  You can RSVP here to attend.  Hope to see you all there.

For additonal background on social media policy, see some of my recent social media policy posts here and here.

In a closely watched case, the Fourth Circuit Court of Appeals held yesterday that a “Like” on Facebook is a form of speech that is protected under the First Amendment.

In doing so, it kept alive a lawsuit brought by an employee who claims he was fired for supporting an political candidate who was running against his boss.  The WSJ Law Blog has some additional details and you can download the decision here.

The Court said that a “like” is the internet equivalent of a candidate yard sign:

 In sum, liking a political candidate’s campaign pagecommunicates the user’s approval of the candidate and supportsthe campaign by associating the user with it. In this way, itis the Internet equivalent of displaying a political sign inone’s front yard, which the Supreme Court has held issubstantive speech

While the case arises in Virginia, it could have some important implications to employers in Connecticut, as I commented in a Law360 article (registration required) late yesterday:

The appeals court’s conclusion that former sheriff’s deputy Daniel Carter’s “like” of a candidate challenging the incumbent for a sheriff post in Virginia was protected by the First Amendment came as no great surprise to attorneys following the case and showed that courts will treat social media communications the same as more conventional modes of self-expression, lawyers told Law360 on Wednesday.

“The court’s decision is confirming what many of us have long suspected, which is that speech on Facebook may be protected under the First Amendment,” said Shipman & Goodwin LLP partner Daniel Schwartz.

The ruling will likely have an impact in some states, including Connecticut, that protect private employees from being disciplined for exercising First Amendment rights, Schwartz said. But the decision may also shed light on how the NLRB will tackle the question of whether an employee clicking the “like” button is protected by the National Labor Relations Act, an issue pending before the labor board in a case called Triple Play Sports Bar.

Of course, the decision leaves a lot of questions unanswered. Will a “like” always be protected? What if you are “liking” a page just to track it? How do you know when a “Like” is really for liking a page?

And of course, what about other similar actions on other social networks? Is an “endorsement” on LinkedIn really anendorsementof an employee’s views? Is a retweet on Twitter a supportive role? What about a “+1” on Google+? Or a Heart on Instagram?

It can go on and on.  All these questions will continue to arise as long as social media continues its growth.

For employers, the decision confirms something I’ve preached about in our seminars: That online speech may be protected under state law or even the First Amendment under some circumstances.   Before taking action on such speech, make sure you understand the laws in play and seek local counsel if you have any concerns as well.

And, of course, if you like this post, feel free to “like” it below.  Though let’s agree that sometimes a “like” is really just something else entirely.

At the Connecticut Bar Association’s Annual Meeting, NLRB Boston Regional Director Jonathan Kreisberg gave a thorough update on the agenda of the federal agency.

While most of the discussion focused on the latest pronouncements of social media, during my presentation on Vine and other photo/video social media sites, he also mentioned something that hasn’t often been discussed as well: employee use of smartphones to take pictures or videos in the workplace.

Indeed, Kreisberg said that he believed that there were a couple of cases winding their way through the agency now on whether such use was permissible or whether employers could restrict such use.  He said he would not be surprised if the Board upheld most employee use of videos or photos as a protected concerted activity or other protected action.

With Vine and now Instagram as very popular photo and video sharing apps on smartphones, the NLRB’s position could have a significant influence on employer’s attempts to rein such conduct in.

Will this be the next frontier for the agency? Stay tuned.

With apologies (credit?) to Randy Newman, you’ve got a friend in me.  Or at least an online “friend.”  It’s better than having enemies, right?

Regardless, you’re cordially invited to join me and others for another Pullman & Comley, LLC webinar on employment law. 

I’ll be leading the charge this time around with this webinar entitled: “With ‘Friends’ Like These: Where Do We Go From Here on Social Media.”

It is scheduled to be held on May 9th from 1-2p ET.  And did I mention it was free?

This hour-long program will tackle the very latest: from the developments at the NLRB to new laws about asking for social media passwords from job applicants and everything in between.  We’ll take your questions as well.

For more on the program and to sign up (and please do sign up before it fills up virtually), you can click here or here

“See” you on May 9th. 

(And since you no doubt have the Toy Story song in your head, I’ll include an easy link below.)

A few days ago, The New York Times, ran a series of short essays from people on its “Room for Debate” page. The question it posed? “Should employers get tough with strict policies about social media activity, so that employees face consequences at work for what they say online?”

Standing on a soapbox

Not surprisingly, the opinion’s ranged from the “What you do or say on the Internet is none of your boss’s business except in the rare case where it affects the company” to “Absolutely, employees should face consequences at work for what they say on social media – sometimes”.

You will notice, of course, what these seemingly opposite statements have in common — the exception. 

That is, you should or shouldn’t take action — except when it matters.  Defining “when it matters” though is the tricky part.

For a hospital or financial services company, it may matter a lot more given how regulated those industries are. 

Indeed, the SEC issued guidance last week on how social media should be used in compliance with Regulation FD.  And last fall I highlighted the issue when some analysts were fired for disclosing insider information on Facebook. 

For a small company with a client base that isn’t tech-dependent, it may matter a lot less. 

The problem, of course, is still answering the question of “Does it really matter what the employee does online all the time?”

I would suggest, as I have before, that there is just not a one-size-fits-all answer to this.  Social media continues to go through “growing pains.” And companies need to figure out if the “punishment” fits the supposed “crime” online. 

What’s an employer to do if it hasn’t figured this out yet?

I’ll use what I said over a year ago:

Social media does not mean you have to throw out your existing rules. The rules on confidentiality, or anti-discrimination, for example, still apply on the online world. Employers just need to understand that they what happens in the workplace isn’t necessarily staying in the workplace anymore.

The Connecticut General Assembly’s Labor & Public Employee Committee today is considering drafting a proposed bill “to prevent current or potential employers from requesting or requiring that employees or potential employees provide passwords to their personal accounts as a condition of their employment.”

I won’t mince words. Proposed Senate Bill 159 is a bad idea. 

It’s a solution in search of a non-exisitent problem and ultimately it would have serious ramifications for employers in Connecticut.

Ohio is currently considering the same type of bill and Jon Hyman, from the Ohio Employer’s Law Blog, neatly summarized the reasons why this remains a bad idea.  Here are two of them which are directly applicable to Connecticut:

  • It contains no exceptions for internal investigations. Suppose, for example, Jane Doe reports that a co-worker is sending her sexually explicit messages via Facebook. You have an absolute duty under both Title VII and [state] employment discrimination statute to investigate and take whatever remedial action is necessary to ensure that any misconduct ends. Yet, this bill would prohibit you from even asking the accused to provide access to his Facebook account as part of your investigation.
  • It contains no exceptions for regulated industries. For example, registered representatives have special rules that dictate what they can or cannot say to clients and prospective clients via social media. FINRA requires employers to track and maintain records of the communications between registered reps and the public. Yet, this bill would prohibit a securities firm from requiring its registered reps to turn over these communications. It would also prohibit the firm from even asking for access to a rep’s social media account to investigate a customer complaint or regulatory issue.

I’m not advocating employers ask their employees for their passwords on a routine basis.  It’s poor human resources practice.  But what Connecticut doesn’t need is another knee-jerk piece of legislation that will do much more harm than good.

The bill already received a preliminary thumbs up in the committee a few weeks ago.  The CBIA has opposed it and suggested very narrow language to address whatever concerns are there.

Let your local legislator know that this bill should go no further in its current format.

Yesterday, The New York Times — about a gazillion years after this blog and other employment law blogs talked about it ad nauseum — wrote their definitive piece entitled on how “federal regulators” are “ordering employers to scale back policies that limit what employees can say online.”

The headline?  “Even If It Enrages Your Boss, Social Net Speech Is Protected.”

Are you scared yet? Hopefully not, because if you’ve been following this blog at all, you know that such pronouncements are misguided and overblown.

That’s not to say that you shouldn’t review your policies to make sure that they are appropriately tailored. And that’s not to say that you shouldn’t exercise caution before firing an employee who just said something about someone at work on Facebook. 

But, it is far past the time when we should treat each pronouncement or each article on social media as this huge development that requires employers to change everything time and again.

Social media — like the telephone, fax machine or e-mail before it — is now just another communications tool that is here to stay in one form or another.   If you don’t get it yet or look at those who use it with disdain, you’re simply missing out on a tool that can be useful to your employees and to you.   The one billion people who use Facebook aren’t suddenly going to wake up tomorrow and decide that its not useful.    

Let me give you a real-world example outside the workplace and how I’m convinced that social media is for everyone now.

Continue Reading The Last Post About Social Media & Employment Law Ever. (Maybe.) (Not Really.)

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.