Today we've been talking about social-media policies in the workplace. (See "The twitterable Twitter policy updated" over at my new site, jayshep.) In my recent book, Firing at Will: A Manager's Guide, I covered the legal problems that can crop up when you set out a Facebook policy. Here it is, from Chapter 3, "Risky Business":
Private, nonunionized employers usually don’t need to worry about the National Labor Relations Act or the federal agency that enforces it, the National Labor Relations Board. The NLRB’s purview primarily extends to disputes between employers and unions. But one of the times when the NLRB sticks its nose into the private, nonunion workplace is when an employer creates rules that prevent employees from talking with each other about their working conditions.
Section 7 of the Act gives all workers the right to engage in “concerted activities,” a term that sounds ominous to employers and management. It’s a broad term that usually refers to employees’ getting together to form a union or engage in labor-related activities.
But it can also be used to describe workers’ informally complaining about bosses or pay or other goings-on at work. Employees have a right to do that, and employers—even those in nonunionized workplaces—can’t create policies restricting that right.
This has come up a lot recently with Facebook-related incidents. The scenario is increasingly common: an employee gets into some kind of beef with her supervisor, then logs onto the social-networking site and complains about her boss. The company then fires her. Problem? According to the NLRB, it may well be.
In a nonunion environment, an employer can fire an at-will employee for any reason, including an angry Facebook rant. (And before you start squawking about the First Amendment and freedom of speech, remember this: there’s no such thing as the First Amendment in a private employment context. You need a state actor—a person acting on behalf of the government—to have First Amendment concerns.) But Section 7’s concerted-activity clause creates a type of free-speech protection. And this is where Facebook comes in.
In the rash of recent Facebook cases the NLRB has brought against employers, the workplace was either unionized or the employer created a policy that restricted workers’ concerted-activity rights (or both). Well-meaning employers created policies that prohibit employees from saying mean things about coworkers or supervisors on Facebook or Twitter or some other social-media site. By doing this, the nonunionized employer gave the NLRB a hook to go after it, because a policy like that can be seen as squelching concerted activities among the workers. (One employee bitching about his boss is a terminable offense, but two employees complaining together can be protected concerted activity. Makes sense, right?)
So far, most of these NLRB Facebook cases have ended up with the employers settling to avoid costly and distracting litigation. And in my opinion, the NLRB has been overreaching and outstepping its proper authority. But the main takeaway is that you’d better be careful about creating workplace policies that prevent employees from discussing work. Idle gossip may be a negative influence at the workplace, but trying to legislate it away with policies may get you into hot water.
— from Firing at Will: A Manager's Guide (Apress, 2012), copyright 2011 by Jay Shepherd.
Want to know what that one word is? Here are two easy ways to find out:
Go grab your nearest unabridged dictionary. Turn to page one. Start going through each defined word one at a time. You'll get to it eventually. (OK, maybe that’s not so easy.)
Go to the LexThink.1 site and vote for my proposed talk, “One Word That Will Reinvent How You Serve Clients.” Just click on the handy "vote" icon (see image).
Voting ends February 24. There are 23 other proposals from a rogue’s gallery of big legal thinkers, and only the top 12 will be selected. Your vote will make a difference.
So what is LexThink.1? Well, it’s an evening of very short presentations with a challenging constraint: 20 slides, 18 seconds a slide (equaling six minutes exactly, or 0.1 to you lawyers who still use timesheets). The speaker has no control over the slides, which keep advancing like sands in the hourglass (or something) every 18 seconds. It forces the speakers to keep it brief and pithy, and to leave home all the boring bits. It’s inspired by Japan’s Pecha Kucha Nights, which allows a luxurious 20 seconds for each of the twenty slides. This is its third year; it was previously called "IgniteLaw."
To see an example, here is my talk from last year: "Quantum Leap: How You Will Practice Law in 2019."
No matter which proposals get chosen, it promises to be an amazing event. Hope to see you there. And thanks for the vote!
So I'm having a #LegalChat this morning on Twitter, and the subject of …
Pardon? Oh, what's a "#LegalChat"? It's an open conversation on Twitter where people can choose to participate and discuss a particular topic by tweeting something and adding the hashtag #LegalChat at the end of the tweet. Or you can just lurk, and read the different entries without adding your own. (Nothing wrong with that.) You don't need to be invited, and the group is obviously self-selected. But only people who are interested in the topic would bother.
Today's #LegalChat was about the legal implications of social media — a timely topic. (See "Vote 'Yes' on social-media law.") An incredibly bright bunch of social-media experts and lawyers joined in with questions, answers, and tips. One of the recurring themes was how to help companies and individuals protect themselves while using social media — short of abandoning it altogether.
Since I've written here about my antipathy toward draconian social-media policies, I thought I'd share my take on how social-media users should protect themselves. Here's what I tweeted on the #LegalChat discussion:
[@VMaryAbraham is the well-respected blogger, lawyer, and knowledge manager who asked the question.]
Since I have more than 140 characters here, let me explain:
The advice I give people using social media — or anything that's written electronically — is to assume that the person you most want not to see it … will see it. (This is actually a corollary to our firm's First Rule of Litigation: The other side will always learn what you most want them not to learn.) Over 17 years of employment litigation, I've seen it happen too many times not to believe that it is actually Cosmic Law (or at least an offshoot of Murphy's Law).
All too often, people either (1) don't even think about the possibility that the wrong people will read what they've written, or (2) underestimate the likelihood that it will be seen. Either way, they end up with the embarrassment (or worse, the litigation) that comes from the wrong people reading the wrong things.
Never assume that people won't find what you've written. Lawyers can be pretty smart, and we can often find things that you think you've hidden. (See my recent Above the Law post, "Social Media and Breast Implants.")
If you follow Cosmic Law, then there's no need to avoid social media or be burdened by restrictive social-media policies.
What do you think? Is following Cosmic Law enough? Do you think it isn't Cosmic Law? And when exactly is the Cosmic Law bar exam?
It's kind of exciting to witness the birth of a new area of law. (OK, maybe it's only exciting to lawyers. Look, we need the excitement, all right?) When new things arise in society at large, the law has to play catch-up. Thus the civil-rights advances in the 1960s led to discrimination law. The rise of the Internet in the 1990s led to a brand-new area of Interwebs law. Terrorism at the turn of the century led to a body of terrorist-related law (not to mention the whole PATRIOT Act). And so on. Since law is an industry that tends to favor precedent and authority over innovation, it can take us a while to get our act together.
Now it's social media's turn. Over the past five years, it has become clear to even the most Luddite of lawyers that social media is not a fad, that it's here to stay, and that it's rife with issues that will eventually involve lawyers. Which means we're going to need an area of law called social-media law. (Yes, with the hyphen. When you use it as a phrasal adjective before a noun, you hyphenate it. End of lesson.) And which also means we're going to need social-media lawyers.
[Important aside: I am not advocating that we need to hyperlegislate social media, and I am not saying that it's a good thing that we need lawyers in this area. It's just a fact. When humans interact, they get into disputes. You can choose to resolve disputes with lawyers, or you can resolve them with fisticuffs. Your call. Plus it's hard to punch people over the Internet.]
Right now, with a vacuum in the area of social-medial law and a dearth of social-media lawyers, employment lawyers are stepping up to fill the void. Unfortunately, most of them are taking what I call the "No" approach. These are the folks who are drafting blog policies like Harvard Law School's. (See "A two-word corporate blogging policy.") And LinkedIn policies that try to prevent departing employees from keeping their own contacts. (See "Who owns an employee's LinkedIn contacts?") And Twitter policies designed to, well, keep people off Twitter. (See "A twitterable Twitter policy.")
[By the way, Doug Cornelius (@dougcornelius) has accumulated an amazing database of well over 200 social-media policies on his Compliance Building blog. Most of them are exactly what I'm talking about — written in the "No" approach.]
As employment lawyers, they know all about drafting employee policies. But more often than not, they don't know much about social media. Which is a problem. When I see an announcement for a lawyer seminar on social media, I check out the bios of the lawyers presenting to see what their social-media creds are. I look to see what their blogs are called, how many Twitter followers they have, and how active they are on LinkedIn. What I usually find is nada. No blogs, no Twitter. No Klout score. Maybe a perfunctory listing on LinkedIn. In other words, they're not exactly social-media mavens.
[Quick note on Klout: By mentioning this new social-media "scoring" site, I'm not saying that it has any particular importance. It's just one company's way of measuring an individual's traffic on the Interwebs. For a decent introduction to Klout, read this article by The Boston Globe's Beth Teitell, "Ascent of the social-media climbers."]
And if they're not active in social media, they're much less likely to understand what makes social media the human phenomenon that it's become. Which means that they're more likely to tell their corporate clients that they should fear social media, and that they need prohibitive policies to minimize the chance of Very Bad Things happening.
I for one prefer the "Yes" approach. Yes, social media is here to stay. Yes, employees are going to tweet and Facebook and make connections with people on social-media sites. Yes, these employees can act as effective brand ambassadors for their companies, and they should be encouraged to do so. Yes, sometimes Bad Things relating to social media might happen, but we'll deal with them. We don't need draconian policies to prevent people from acting like idiots. People are going to do that from time to time anyway. Why throw out the good along with the bad?
If you have a company who wants restrictive social-media policies to prevent your employees from connecting with other people over social media, absolutely do not call me for help. (Or fax me. Or telex me, or whatever you guys are still using for communications.) You're not going to like what I'm going to tell you anyway.
But if you have a company and you understand that social media is a way for your company and your people to interact with the world, and you want guidance in this new area of social-media law, call me (617.439.4200). No, better yet: reach out to me on Twitter (@jayshep) or LinkedIn. I look forward to connecting with you.
• • •
Update Right after posting this, I noticed an article on Inc. magazine's site, "How to Avoid a Social Media Lawsuit." (Yeah, no hyphen; right off the bat, you know it's suspect.) It pretty much proves my point. All kinds of "No" approach here. Even worse is an older linked article called "How to Write a Social Media Policy." Besides advocating that companies consider eighteen different policies, it also recommends a $149 "social media policies toolkit" so that you can roll your own. Yeah, you should definitely do that. If you're an idiot. Unbelievable. [Hat tip to @kevinokeefe.]
Or Facebook friends? Or Twitter tweeps? If an employee is using these social-media sites in his or her professional capacity, does the employer have the right to take the contacts away once the employee leaves?
The correct answer is: shut up.
Seriously. If you're an employer or a manager and you're seriously asking these questions, you just don't get it when it comes to social media. You're missing the whole point of these social-networking sites.
Now pause for a minute before you go ballistic on me in the comments below. Remember: I'm a management lawyer. I'm on your side.
But the whole point of having your employees on these sites is to broaden the reach of the company's brand. Making connections with other people — customers, prospects, vendors, referral sources — by combining the employees' personalities with your company's brand identity is what it's all about.
And there's a trade-off here. Your company's brand reputation (ideally) helps your employees raise their own personal stature online. But if they leave your company, voluntarily or not, they have that stature to take with them. And there's nothing you can do about it. That's the implicit bargain you make with your employees when you use them as ambassadors for your brand.
That's why it drives me batspit crazy when I see other employment lawyers sounding alarms of doom and drafting small-minded policies about retaining social-media contacts for the company after the employee's departure. See, for example, "Who owns the salesperson's LinkedIn accounts?" Or a similar article here. There's even a discussion on this at LinkedIn itself.
Seriously, cut it out. If employees put themselves out there in cyberspace, even on the company's behalf, they can take their online connections with them when they leave. If you can't abide that, then maybe you do need a policy barring social media. Just don't come to me for that, because you're not my kind of employer.
On the other hand, if you're the kind of enlightened employer who sees the real value in having your employees connect with people who might lead to more business, and you understand that there's always a risk that those contacts will leave with your departing employees, then definitely give me a call. We're kindred spirits, and I can help you.
One more thing: Much of my legal work involves noncompetes and trade secrets. And one of my favorite tools for investigating whether a departed employee is violating agreements or stealing trade secrets is searching through social-media sites. Just because I sound all "Kumbaya" about social media doesn't mean that I won't use it like a hammer to win a lawsuit. (Just sayin'.)
What do you think? Does your company have LinkedIn policies about whose contacts are whose? Do you think you need them? Sound off in the comments.
Many employers are fretting that Twitter — like email and The Google and The Interweb — are a drain on employees' time and attention, and generally a bad thing for business. Some companies have already taken to banning Twitter from the workplace: most notably, the White House (even though Twitter got the President elected), the Marine Corps (even though the Chairman of the Joint Chiefs has 4,000 followers), and the Green Bay Packers (no wonder Brett Favre left).
But I take issue with that.
And I'll even go a step farther. I've met enough people in the Twitterverse to conclude that Twitterers make better employees. Let's call them tworkers, since Twitterers *heart* neologisms. And remember, I write from the perspective of a management employment lawyer.
Here then are five reasons, which are each — of course — Twitterable (in fact they're twooshes — exactly 140 characters long):
1. Tworkers are usually extroverts. They don’t shy away from attention and they like showing off. They understand their roles as performers.
2. Tworkers are interested in being part of a community, one they help build. They care about people, and they’re sharing and compassionate.
3. Tworkers are unafraid of trying new things, but not because something is a fad. They are always looking for a better way of doing things.
4. Tworkers have the ability to quickly make friends with strangers. They also know that what they say reflects upon them and their company.
5. Tworkers know how to express themselves concisely in plain English. They say what they mean. They get to the point without wasting words.
As an employer, and as an employment lawyer, these are qualities that I want to see in my workplace. Or tworkplace.
Employers: don't ban Twitter from the workplace. Instead, look for good tworkers.
As more employees carry and use iPhones and BlackBerrys, some employers are fretting about an increase in impolite smartphone usage. A few days ago, The New York Times had a fine article by Alex Williams called "Mind Your BlackBerry or Mind Your Manners." In it, Alex cites questionable smartphone behavior in different workplace settings. Some companies have taken to policies banning BlackBerrys during work meetings. But more companies are facing up to the reality of the omnipresent smartphone: "Despite resistance, the etiquette debate seems to be tilting in the favor of smartphone use, many executives said."
What do you think? In this space, we've usually advocated a policy-lite approach that involves treating employees as grown-ups who have judgment. See, for example:
I want to hear from you, managers, HR pros, in-house lawyers: Does your company need a smartphone policy? Leave your thoughts in the comments, or send me an @message or direct message on Twitter: @jayshep.
And while you're at it, take this quick, single-question poll.