Almost everyone is involved in or on social media sites nowadays. People have Facebook accounts to stay connected with friends and family. Business people have LinkedIn accounts to connect with work colleagues. Twitter accounts allow people to post updates of 140 characters or less. Along with these personal accounts, some employers have a business Facebook page, LinkedIn page, or Twitter account. So, of course, a new legal battle has erupted over who actually “owns” these accounts.

In PhoneDog v. Kravitz, an employer and former employee battled over a company sponsored Twitter account. The misappropriation of a LinkedIn account is the subject of a U.S. District Court case in Pennsylvania between Edcomm and former CEO Dr. Linda Eagle. After Dr. Eagle’s termination from Edcomm, the company accessed Dr. Eagle’s account with her password, changed the password and changed the account profile to list the interim CEO of Edcomm. Dr. Eagle ultimately regained access of her account, but brought a lawsuit against Edcomm for violation of the Computer Fraud and Abuse Act, the Lanham Act, as well as, numerous state claims. The federal claims were dismissed under summary judgment. The Court has set a trial date on the state claims. These cases differ, the Kravitz case involved a company-sponsored account and Dr. Eagle’s LinkedIn account was not a company account.

The most important protection for businesses is to have a social media policy in place. The social media policy should:

1) Address what an employee can or can’t say about the company on a personal social media account.

2) Identify the business as the “owner” of any company social media accounts, and outline even though an employee has access to the company account for purposes of promoting the company, it doesn’t mean the account is the employee’s account.

3) Identify what happens to company social media accounts, when an employee leaves employment with the company.

The allure of social media is so intoxicating. It leads you into a vortex of lost time and opportunity, which can’t be replaced or restored. I was having lunch recently with a friend at a chain restaurant, and watched the social media vortex in action over the shoulder of my friend. A father of ten year old red-headed fraternal twins, sat hunched over his smart phone, madly texting, emailing, or surfing the Internet for almost a full hour. While he was sucked away from the present lunch with his delightful children, they entertained themselves.

The two children took turns with their butter knives, making it appear they were stabbing themselves while slipping the knife along the side of their necks. They made dramatic faces at the fake moment of impact, to the delight of their sibling, and to me as I watched them from the next table. When they tired of that game, they drank their children’s size pop and proceeded to use the knives to cut fringe on the top of the empty paper cups. At that point their father looked up and grumbled at them to not make a mess, and immediately returned to his activities on the phone.

When dad finished texting on his smart phone, he grumbled at his children and announced “Let’s go.” He missed a wonderful opportunity to engage with his knucklehead children who appeared full of fun, and ready for adventure. This missed opportunity was gone forever, thanks to social media.

The same allure of social media is also happening all too frequently in workplaces. Several studies have equated the overuse and abuse of social media by employees, with real financial losses to their employers. Based on a survey USA Today reported, “Distractions caused by social media, e-mail and badly designed office technology may cost a 1,000-worker company more than $10 million a year.” The same loss of time and productivity is also being felt by small and mid-size companies, but hasn’t been quantified yet in a survey.

Workplace distractions include employees mindlessly searching the web, endlessly emailing friends, or spending hours on Pinterest, all while being paid to perform work for their employer. The hypnotic effects of the Internet cause employees to lose track of time, and underestimate the actual loss of productive work. Combine social media distractions with routine office interruptions, and employee productivity can sink to all time lows.

But take heart, all is not lost for employers. With a few proactive steps, workplace expectations can be established and relayed to employees. 

  1. Adopt a social media policy which clearly outlines when (breaks, lunch, or never?), how (personal devices, or only company technology?), and how much social media use is permitted (minimal, work purposes only, or no social media use?). Each business will be different and the policy should reflect the unique needs of the business.
  2. Train the employees on the policy. Have them sign they received the policy and attended the training, and be sure to provide adequate time for employees to ask questions during the training.
  3. Following-up and monitoring employee use of social media is crucial. First, make sure the Employee Handbook notifies employees that their use of social media, including emails will be monitored by the Company. Employees should be placed on notice they have no expectation of privacy in their use of social media on Company technology. (Note: While employers may restrict the use of an employee’s personal technology devices in the workplace, they may not access an employee’s personal devices without a court order due to privacy rights of the employee). IT should conduct audits of the Company’s technology to insure employee use complies with the Company social media policy.
  4. Address employee use or abuse of social media as problems arise through coaching, counseling, or discipline.
     

Last summer I blogged about the inappropriate Facebook posts of a University of Minnesota mortuary science student. She had posted comments about cadavers, descriptions of embalming as cathartic, made threats to stab someone in the throat, and she nicknamed a cadaver “Bernie” from the classic comedy film “Weekend at Bernie’s.” As a result of her Facebook posts she received academic sanctions. She subsequently filed a court action arguing she had a constitutional right to free speech in her Facebook posts. The Court of Appeals ruled against the student, indicating her “…posts to a social networking website materially and substantially disrupt[ed] the work and discipline of the university.” The mortuary science student has spoken out once again by appealing the decision to the Minnesota Supreme Court, who heard oral arguments in the case last week.

According to Pioneer Press reporter Emily Gurnon, the student’s attorney argued she was “…off campus when she posted the comments, she didn’t identify the cadaver by name, and she didn’t describe the dissection procedure in detail, which student rules forbid.” Gurnon appeared to have been present for the oral arguments, quoting Jordan Kushner, the student’s attorney, in response to Justice Paul H. Anderson’s question about deference to the University’s sanctions and the need to provide for the safety of students. Attorney Kushner responded “there were no specific threats…That would be a different situation.” Kushner also quoted his client as saying, “She needs to joke and express humor, or she’d be the most miserable person on the planet.”

The right to free speech does not give students or employees carte blanche to say whatever they want. In this case the mortuary student’s remarks were stupid, immature, and disrespectful. Like the saying goes, “Say it, forget it. Write it, regret it.” I am hopeful the Minnesota Supreme Court will give us some guidance and clear up the cultural blur between personal and professional use of social media. 
 

Just when I thought I had seen everything, and I didn’t think there were any more new surprises with employees and technology, then BAMMMMM!! I am proven wrong. Employees are now scripting and filming themselves quitting jobs they apparently hate. The YouTube video “Joey Quits,” was recently featured on the Today Show. Joey had worked for several years at a hotel and apparently did not like his job very well. He wrote out his resignation and then got a group of friends with band instruments to go to the hotel to confront his boss. The band played a rousing march tune, while Joey literally threw the resignation notice at his boss. The boss stood there with a deer in the headlights look, as the band played, and Joey marched out of the hotel. 

The NBC reporter mentioned Joey already had a new job when he quit at the hotel, but no one mentioned the short-sightedness of his actions in the eyes of future employers. My grandmother warned me against burning your bridges behind you, but apparently Joey didn’t get the same sage advice. Social media should be viewed as carved in stone, and future employers can no doubt search and will find Joey’s little film on the Internet. The video is clear evidence of his lack of maturity, lack of conflict resolution skills, and his complete self-absorption. Unfortunately, Joey is not the only employee to quit a job and then post it on the Internet for the world to see. What’s next with employees and social media? I can’t wait to see.

 

I blogged several weeks ago about a spate of NLRB cases concerning employee use of Facebook. The cases were very fact specific and left employers swimming in murky water. We now have a ruling from an Federal Administrative Law Judge finding a Buffalo, New York nonprofit unlawfully discharged five employees after they made Facebook posts, critical of the employer. The waters are beginning to clear.

The case involved Hispanics United of Buffalo, a nonprofit organization providing social services to low-income clients. A co-worker criticized other employees for not doing enough to assist clients, and posted the criticism to her Facebook page. Other employees responded, defending their work performance and criticizing working conditions, work load, and staffing levels. Hispanics United then discharged the five employees who responded to the Facebook criticism, claiming they had harassed the employee who originated the post on Facebook. The NLRB filed a Section 7 charge claiming the Facebook discussion was protected concerted activity.

The Administrative Law Judge agreed with the NLRB, finding the Facebook conversation involved employee conversations about terms and conditions of employment, including work performance and staffing levels. The five employees were reinstated with back-pay, and Hispanics United was ordered to post a notice in the workplace concerning employee rights under the NLRA. Hispanics United has the ability to appeal to the NLRB Board in Washington, D.C.

Facebook has becom the modern day version of the water-cooler. While it may be employee-friendly, employers should proceed with Facebook cases with great caution. The trend developing suggests the NLRB and Administrative Law Judges are leaning in favor of finding employee use of Facebook to be protected concerted activity.
 

The National Labor Relations Board’s Acting General Counsel released a report yesterday, detailing the outcome of a mixed bag of 14 cases involving the use of social media by employees, their employer’s social media policies, and in one case the improper use of social media by a union. The report is a fascinating read for employers, and shows how the NLRB is really splitting hairs on what to do about employee use/misuse of social media. Each case is extremely fact specific. The waters are beginning to clear, but there is no bright line yet.

Eight of the cases reported, involved employees using Facebook to criticize their employer, supervisor, or fellow employee. In four of the cases, the NLRB ruled the employee’s activity was protected concerted activity. In the other four cases, the conduct was deemed to not be protected by the National Labor Relations Act. The difference lies in a determination of whether or not activity is, “Engaged in, with, or on the authority of other employees, and not solely by and on behalf of the employee himself.” Concerted activity also includes “circumstances where individual employees seek to initiate or induce or to prepare for group action” and where individual employees bring “truly group complaints” to the employers attention. Translated, this means whether or not the employee is acting alone, or in concert with others. To the extent the employee acts alone it is not concerted activity; to the extent the employee communicates with fellow employees, the more the activity looks concerted and is more likely to be considered protected activity.

One of the fourteen cases was about an employee tweeting, and four others concerned the question whether or not an employer’s social media policy was overly broad. Three of the social media policies reviewed by the Board were determined to be overly broad, one was not.  The take-away for employers is to understand social media cases will be reviewed by the NLRB on a fact specific basis. When presented with a problem of an employee’s potential misuse of social media, an employer should carefully review the facts.

  • Who was involved in the social media communication?
  • When?
  • What was the subject of the social media communication?
  • What was the purpose of the communication?
  • Does the social media communication appear to be “concerted activity”?

The second step is to review social media policies to determine if they are overly broad, and have the effect of chilling an employee’s rights under Section 7 of the NLRA. Adding an exclusion which reads, “This social media policy is not designed to hinder, restrict, or compromise an employee’s rights under Section 7 of the NLRA,” is a very good idea.

Another good resource for employers is to review the recent “Survey of Social Media Issues Before the NLRB,” completed by the U.S. Chamber of Commerce. It covers 129 NLRB decisions concerning social media and workplace issues. The Chamber reported, “The vast majority of the cases we reviewed through this survey fall into two general categories: employer policies restricting employee use of social media that are alleged to be overbroad and employer discharge or discipline based on an employee’s comments posted through social media channels.”
 

Technology and social media use is morphing at light-speed. Figuring out clear lines and appropriate social behaviors remains very murky. The court system has been no help in providing guidance, due to the lengthy delays between the filing of a case and a final court ruling, generally issued years later. Last year, my law partner blogged about a sexting workplace discipline case. There was an eight year delay between the employee’s misconduct, and the final decision issued by the United States Supreme Court. By the time the Court ruled, the pager technology used by the employee was already out of date. Judges are historically reserved and reluctant to provide much guidance because they simply can’t predict where social media and technology is headed, and can’t fathom how quickly the social media/technology landscape is changing.

I keep looking for cases to help clarify the boundaries and the new rules, but they are few and far between. What are the appropriate boundaries on social media use, and what are the new rules?
The Minnesota Court of Appeals gave us a glimmer of guidance this week, in a case having to do with a University of Minnesota mortuary science student. We can extrapolate from the tenor of the decision and start to see where social media may be headed, and what seems to matter to the Courts.

In the case, a mortuary science student commented on Facebook about a cadaver she named “Bernie,” she described embalming as cathartic, and stated she wanted to stab someone in the throat with an embalming tool. She also mentioned wanting to take out her aggression on the cadaver and about updating a “Death List.” The Facebook posts went out to fellow mortuary science students, her Facebook friends, and friends of her friends. Her Facebook comments were determined to be threatening and inappropriate, and in violation of University rules. Her sanctions included: receiving a failing grade in the class, attending a clinical ethics class, writing a letter to department faculty addressing the issue of respect in the department and the profession, and completing a psychiatric evaluation.

The student challenged the University’s discipline as arbitrary, and argued that her Constitutional right to free speech had been violated. The Court of Appeals was not convinced and ruled, “A public university’s disciplinary sanctions do not violate a student’s right to free speech where the student’s posts to a social networking website materially and substantially disrupt the work and discipline of the university.”

Important points noted by the Court include the fact the University had held an in-depth orientation for students about the treatment of cadavers, and students were required to sign acknowledgment forms indicating they had read the department policies about the responsibilities of dissecting a human body. Additionally, because the University relied very heavily on a voluntary anatomy-bequest program for donated bodies, and because the program was jeopardized, the Facebook posts were deemed to be disruptive to the work and discipline of the program and the University.

Based on the Court’s rationale, we can extrapolate a few take-aways.  Clearly, the Court took note of the fact there was an adopted social media policy which established notice and expected accountability. Training on the policy, and requiring a signed acknowledgment form indicating receipt of the policy, were also mentioned by the Court as important to their ruling. Finally, if social media use can be proven to disrupt work and discipline, it is less likely to be determined to be protected speech.  Common sense won out in the end.  If it’s not a good idea to shout out thoughts and comments standing on a street-corner, it is probably not a great idea to post them on Facebook.

 

Many legal bloggers have wondered about the direction of the post-Bush National Labor Relations Board (NLRB). Speculation began about the time the Senate filibustered President Obama’s nominations, when the President slipped in under the radar with recess appointments of Craig Becker and Mark Pearce.

I think the time for speculation is over in light of the recent decision of the NLRB to file a complaint against American Medical Response of Connecticut, for firing an employee who used Facebook to lambast her supervisor. The case stemmed from an employee who was asked to prepare a response to a customer complaint. The employee, a member of Teamsters, asked for assistance from her union representative. When her supervisor denied her request, she lambasted him on Facebook using vulgarities and referring to her supervisor as a “17,” the company’s abbreviation for a psychiatric patient.

The NLRB has claimed the company’s Facebook policy was “overly broad,” and infringed on the employees right to discuss working conditions with fellow employees. The policy had prohibited employees from making comments about the company on Facebook or other social media sites.

The New York Times reported, “…, the Board faulted another company policy, one prohibiting employees from making “disparaging” or “discriminatory” “comments when discussing the company or the employee’s superiors” and “co-workers.” The charges will be heard by the NLRB at the end of January, 2011.

Common sense and civility appear lost in all of this. Yes, the National Labor Relations Act creates protected speech insuring an employee’s right to discuss wages, working conditions, and unionization. It is not however a bullet-proof blanket protecting anything an employee wants to throw out on social media. The case sounds very fact specific, and may very well result in a mixed decision by the Board finding both protected activity and non-protected misconduct by an employee.  MPR Marketplace reporter Janet Babin reported on the case this week, summarizing a variety of viewpoints including my own.

Speaking vulgarities about your supervisor or questioning his mental capacity through social media is not the same as a private conversation with other employees, and besides the rest of the world doesn’t want to hear it. I have previously blogged about the need for workplace social media policies, and the threat to businesses posed by employee use of social media.

This is definitely a case to watch to see how far the NLRB will try to stretch into micromanaging workplaces. In the mean time, it would be wise to revisit your social media policies to see if the NLRB may come knocking on your door. 
 

Some would say there is nothing worse than a woman scorned, except maybe an employee scorned by their employer. Before the Internet, scorned or disgruntled employees told all of their family and friends about how bad their job was, how unfair their boss treated them, or how lousy their employer’s products were. Today the Internet can take the comments of a scorned or disgruntled employee and make them viral in a matter of hours through Facebook, Twitter, YouTube, or a blog.

No workplace is exempt from the wrath of a scorned employee, not even a law firm. The ABA recently blogged about a former associate of Levinson Axelrod, a New jersey law firm, and the “cyber-assault” created by the associate’s blog site “Levinson Axelrod Really Sucks.” The parties have reached a settlement and the blog site has since been removed, but not until many blogs were posted and a lawsuit was commenced.

Employees have taken to using the Internet to vent about workplaces, co-workers, and bosses. Several websites encourage employees to talk candidly about their jobs including:

  • www.workrant.com, which offers a bulletin board for employees to express their workplace frustrations,
  • www.glassdoor.com, which offers company reviews including salaries,
  • www.vault.com, which offers help with resumes, career changes, and the chance to $500.00 if you submit a review of your employer, and
  • www.jobvent.com which asks employees, “Love your job, hate your job, share your experience, post an anonymous review of your company.”

Workplace rants by employees using social media can be a real headache for any business. Having a plan and a strategy is the first step for any employer. The question is not whether a workplace may be attacked through social media by a scorned employee; the question is when will it happen. I have blogged about the need for any business with employees to have a tailor-made social media policy in place, and to train employees on the policy. Having the name of a good media relations firm on hand is also a good idea, to be able to respond quickly to the viral attack, and to manage the response of your business. 

I am back from presenting on social media issues and the workplace at the ABA Annual Meeting in San Francisco. I offered my insights on the need for social media policies at workplaces, after a lively presentation by famous mommy blogger Heather Armstrong, who was “dooced” after anonymously blogging about her boss. The third member of the panel was Minnesota IP attorney Ken Kunkle who enlightened the audience on copyright and trademark concerns surrounding social media. It was a fun legal presentation, on a very timely issue facing many employers today.

The three of us met at the W Hotel for breakfast before the presentation.  Heather Armstrong is engaging, very personable, and very tall!  Ken Kunkle is one of the brightest IP attorneys I know, and a really nice guy.

ABA On-Line did a great job of summarizing the points I made during my presentation, to encourage employers to adopt a social media policy to fit their workplace. The ABA linked to a study which reported only about 30% of American workplaces report having a social media policy.  Informing employees about workplace expectations is a basic mantra of our firm, in addition to making employees aware of the consequences for violating workplace policies.