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.

Lately, it feels that employment law is revolving solely around social media. Indeed, many of my speaking engagements recently have all had a social media bent. (This week, I’ll be keynoting a speech to the Connecticut chapter of the Society of Marketing Professionals Services on Strategies and Risks on Social Media in the Workplace). 

Over the weekend, the Hartford Business Journal even published a few articles about lawyers using social media — of which I was quoted. 

All of this can leave those on the outside wondering if too much is being made on social media’s true impact in the workplace.  (Indeed, I wrote about how I was looking for something new on the topic last month.)

Here’s my take — even if too much IS being made about social media right now (and I’m pretty sure there is) social media’s impact is undeniable.  Social media is not going away.  I don’t mean not going anyway anytime soon, I mean not going away period.  

Over 850 million people are now on Facebook; 500 million on Twitter. And many more on sites like LinkedIn, Pinterest, and even Google+.  These people are not going to wake up tomorrow and realize that social media is a colossal waste of time. 

People are using it. Using it to make connections and to learn things.  And they are using it a lot on their smartphones.  Those firewalls that employers used to use to prevent access a few years ago are virtually meaningless today.

What are some of the implications for employers of understanding that social media is here to stay?

  • Employers need a comprehensive strategy to dealing with the fact that employees ARE going to use social media.  It’s not enough to simply say that they can’t; employers ought to be educating employees on how TO use social media effectively too.
  • Employers should remain focused on performance.   If employees are not getting the job done, then does it really matter that they were on Facebook? Just think back to a different generation — what did you do with employees who were on the phone too much?  
  • Employers ought to understand what’s going on with social media. Get on it.  You may not find utility on these sites but that’s beside the point. Understanding HOW people are using it can give employers some perspective to what is truly going on.  People aren’t discussing what they had for breakfast much anymore (and I’m not sure they ever really did.)

But one last overriding point that is worth emphasizing: 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.   

So, how do you START with these sites? Do a search for “Facebook 101” or “How to Use Facebook”.  There are plenty of sites offering free help.

As another week passes by (seriously, where did January go already?), here are a few odds and ends that are worth a mention:

  • Earlier this month, new rules regarding limits on the use of mobile phones went into effet by the Federal Motor Carrier Safety Administration.   The rule covers “both, drivers of CMVs in interstate commerce, and also any drivers who operate a vehicle transporting a quantity of hazardous materials requiring placarding under 49 CFR Part 172 or any quantity of a material listed as a select agent or toxin in 42 CFR part 73.” Presumably, you should know if you’re covered but if you still have questions, here are the FAQ
  • The NLRB continues to issue memoranda addressing whether an employee’s use of social media is protected under federal labor laws.  Brian Hall, of the Employer Law Report, suggests that the NLRB “may be settling in on, dare I say, a more reasoned position when it comes to these kinds of cases.”   The takeaway? Not all employee conduct is going to qualify for protection but the rules are still being developed.
  • A while back, I noted about a little-known provision on the new health care law that mandated employers provide space in the workplace for mothers to lactate. Since that time, just 23 companies have been cited under the law, reports the Ohio Employer’s Law Blog
  • At the very end of last year, the Department of Labor released three new fact sheets offering further guidance to employers on the topic of retaliation under the FLSA and the FMLA.  Nothing altogether new, but useful nonetheless. 
  • And if you haven’t thought about wehther LinkedIn connections are trade secrets and who owns them, then this post by The Employer Handbook is worth a read too. 

Finally, if you’re looking for other law blogs to follow, you could do a lot worse than to check out this list by BlogRank of the top 50 blogs by various metrics. Yes, this blog is on there, but there are plenty of others worth exploring.

As social media continues to dominate the world — or at least conversations about employment law —  there are a few notable posts that are worth delving into this week that explore the topic further. 

  • Forbes blogger Kashmir Hill (formerly of Above the Law) has a good piece on whether privacy settings matter on Facebook if you sue or get sued.  She compares two cases — one from the East Coast, one from the West  — that reach different conclusions.  What does this mean? It means the law is very unsettled in this area.
  • A similar post in Law Technology News explores the effect of the Stored Communications Act has on requests for a litigant’s Facebook postings.  As the post concludes:

While litigants may be able to avoid application of the SCA under some circumstances, courts will continue to struggle with application of the statute to modern forms of electronic communication, such as social networking websites. As observed by the 9th Circuit, "until Congress brings the laws in line with modern technology, protection of the Internet and websites such as [these] will remain a confusing and uncertain area of the law."

  • An excellent post in the Non-Compete & Trade Secrets blog explores the impact that LinkedIn is having on a claim that a company’s customers are confidential.  Is a change of your employment status on LinkedIn — which gets sent to your contacts — sufficient interference with a customer relationship? Who knows, the author says. But there is a proposed solution: A fact-specific social media policy that addresses these situations.  Which is a nice tie in to the next post….

  • Doug Cornelius, from Compliance Building, was kind enough to post his presentation materials on preparing and drafting social media policies.  Read it. 
  • Finally, for the lawyers out there, the ABA Division of Bar Services, has an easy-to-understand post on how to get started on Facebook.  It’s a good primer; as the post says — "No More Excuses". 

Are you scared of social media yet

That seems to be the approach of newly-minted legal "experts" telling employers to be on guard for employees who use social media with the added suggestion that you can (and perhaps should) fire anyone who says anything silly or mildly inappropriate on Facebook. 

If only it were that easy or simple.

The fact is that the issues with social media are as complicated as ever.  It’s a point I emphasized over a year ago in a post and remains true today. 

Take, for example, the publicized incident concerning a Windsor Locks Superintendent of Schools in hot water over a status update or two (and a comment) that he wrote on his Facebook profile during his first days of work.  The school board is now considering terminating his contract at a meeting on Wednesday. 

What he said isn’t, in my view, as important as where he said it: He posted it on his relatively "private" page of "friends".   It wasn’t open to the public.  Indeed, other than one of his "friends" forwarding it to the school board, odds are most people would never have even heard of it.   (Of course, the superintendent is probably thinking of the old expression "with ‘friends’ like these….")

Should the fact that someone’s Facebook page is set to the highest "privacy" settings make a difference in how we look at issues of employee use of social media? Are we overreacting to every Facebook post?  What is the real difference between a posting like this and say, an e-mail sent out to friends? What about the "water cooler" talk? Is the fact that it is written down somewhere that significant?

These are not easy issues. However, perhaps we ought to think back to when e-mail was introduced.  How many chain letters, jokes, and other nonsense did everyone send and receive during those first few months and years? Did employers fire everyone who sent such an e-mail?

It seems that in all of the frenzy over social media, we are losing a bit of perspective too. Can’t we agree that a status update on a relatively private Facebook page that basically says you’ve had a bad day at work is far different, for example, than a posting on a public Facebook page that gives out your company’s trade secrets?

That’s not to say that discipline isn’t appropriate in cases of inappropriate use of social media. Warnings, suspensions and probation are tools that employers have often used in situations like this in the past.  But firing everyone who ever posts anything even mildly suggestive doesn’t seem to be the solution.

What we truly need is some perspective and not a zero-tolerance approach.

So, as employers, I suggest ignoring the hype about social media and getting into the nuances.  Look at the circumstances of employee use or misuse of social media. Draft your policy to provide you with the flexibility to determine the level of discipline appropriate for a misuse of such a policy. (West Hartford recently enacted a set of guidelines for its school employees if you’re looking for something current.) And don’t throw out your common sense.

I’m often asked how I have the time to keep up the blogging and new developments in the law. Part of it is an exercise in information management.

But there’s a new tool that was just officially announced this morning that should make this exercise easier for everyone.

Most people are now familiar with LinkedIn – a social networking tool that mainly focuses on businesses and business connections. One of the complaints of LinkedIn in the past has been that there isn’t that much to do with it other than post resumes and look for jobs. That has been changing recently as more applications like Slideshare and TripIt allow users to communicate easier and share content.

JD Supra has been around for a while (and founded by UConn Law Grad Aviva Cuyler) and allows law firms and attorneys to post content for others to view. But what it has lacked thus far is an easier way to distribute and share that content to a broader audience. 

Until now. This morning, JD Supra and LinkedIn launched a new application that makes both sites much better.

With this new LinkedIn application, users of LinkedIn can follow content easily from their connections and others.  For more information, you can check out this informative post and YouTube video here. 

I’m already seeing the utility of it not only for myself but others in the labor & employment law area. I got a sneak peek about this last month and the features I like are the ability to follow content in a particular subject matter. Thus, if you have an interest in, say, labor & employment matters, you just need to click the option in the application to receive updates in that area.

I’ve started to post a few articles and links on my LinkedIn page and expect to add more over the upcoming weeks.  Let me know what you think and whether there is particular content you’d like to see.  I anticipate being able to use this site as a way to supplement the blog. 

Most importantly, you do not need to be an attorney to appreciate this content. And no special technical training is needed; just point and click. 

And if we haven’t already connected on LinkedIn, be sure to drop me an invitation here.  You can then follow my content on JD Supra. 

Have you used this application yet? What do you think? What content would you like to see on this site?