More on NLRB Facebook Settlement

This article makes the point the governing law on what an employee handbook can restrict in terms of employee rights to discuss wages and working conditions is governed by a 1998 opinion not the settlement in the American Medical Response case where the employee complained about her manager.

Takeaway?

Employers when spelling out what  employees can’t say or do in terms of expressing themselves about their employer, need to be specific and need not be in the realm of wages or working conditions.

For example, a clause stating that the employee is not to make derogatory remarks about the employers logo or brand, that would probably pass muster because that clearly doesn’t impact wages or working conditions.  An employer would be wise to list out a series of situations that are restricted and then state the prohibitions aren’t “limited to” these but it would give the worker a clear idea of what they aren’t allowed to say.

Hand Over Social Media Passwords Jobseekers!

This news from the Maryland Attorney General could end up in litigation.  Mr. Gansler says that a propsective Maryland state employee can be required to turn over his or her social networking log-on information as a condition of employment.

The reason for such an invasive requirement is for prospective prison guards and to insure that they aren’t involved in gang activity. However, I have to wonder if there aren’t less invasive ways to get the same information.  Also, will such social networking scrutiny lead to finding out this information anyway?  Do people involved in gang activity post the fact on Facebook?

Facebook Privacy Settings Don’t Matter?

Here is an article that mentions three recent civil cases where the defense was able to obtain evidence from private Facebook pages in order learn about the extent of injury in tort cases.  It goes on to mention that defense attorneys  are working around the Stored Communications Act by asking judges to compel plaintiffs to sign a consent form added to the subpoena sent to the Internet Service Providers.

I doubt this “work around” will go unscrutinized by appellate courts forever.  I look for better court guidance on this issue.

Engaging in Social Media & not Damaging Firm IP

Here is an article about an upcoming program about  how to engage in social networking as a company while not giving away trade secrets or degrading the company trademarks.  Its short on specifics because they want people to sign up for their Webinar in the next couple days. Fair enough.

Reflects Lawyer’s View of Social Media

Even though the article is skimpy on actual content, it does reveal the risk-adverse lawyer’s perspective on social networking.  Two of the recommendations provided by one of the attorneys are particularly cautious.  This attorney recommends that companies keep a “tight rein” over social networking in order to avoid inadvertent loss of confidential information.  If by tight rein, the attorney means limiting use of social networking by employees, then this is too broad a restriction.  Her other recommendation is to thoroughly investigate all social networking providers to make sure they are secure and preserve ownership right to the company’s content.  What if Facebook doesn’t pass muster according to this standard?  The attorney would recommend not creating a presence on the most popular website in the world?

No Strategy Assessment

This is an example of how lawyers are too quick to examine legal risks and exposures without considering the overall business strategy of the organization.  This is why lawyers in many businesses aren’t part of a company’s strategic thinking and team.  The key value a lawyer brings is identifying the risks and coming up with legal strategies to minimize them within the context of the overall business strategy.  If businesses don’t take risks, they won’t grow.

LinkedIn Offers Flexibility with Profiles

I believe for most lawyers, LinkedIn should be the hub for social networking efforts.  Twitter is too cryptic and Facebook too relaxed – for most lawyers.

Now even better

LinkedIn was very inflexible about which sections appear in what order.  Now it allows you to re-position your profile to promote those aspects of what you do and who you are.  For example, I stream my blog through LinkedIn through a nicely formatted WordPress branded design but it falls at the bottom of my profile so that people often don’t see it.  Now I have pushed in up higher up in my profile.

More improvement needed

However, within a section, LinkedIn doesn’t allow you to switch the order so my Slideshare applications starting with “S” shows up before my blog “WordPress” on my profile.  If anyone from LinkedIn wants to let me know if there is another way for me to push my blog up or can tell me when that feature is coming – great!

Law Enforcement Adopting Social Media Policies

Everybody is getting into the act.  Now even police and sheriff departments are drafting social media policy because they are interacting with the public in a variety of ways and need to have policies in place to make sure that officers are conducting themselves online as they do in person.

 

Are Facebook Pages Hard to Authenticate?

I have blogged about cases where issues have arisen about whether Facebook information that has been restricted to a limited number of people is discoverable but here is a discussion about another side of the issue – how do you get Facebook and other social networking information admitted as evidence?

Difference of Opinion

A judge is quoted as dubious both of the value of Facebook profile data and the likelihood of getting such information authenticated. However, several lawyers say that the evidence is typically self-authenticated by the Facebook profile owner and that it is often quite useful, better than second hand conversations.

What Does This Mean?

That we are in a transitional period as far as social networking and litigation. Jurisdictions, judges, lawyers and the like are still sorting through how social networking will be treated by the legal system. Understanding all the arguments, pro and con, is probably the most important thing at this point rather than asserting certainties that don’t exist.

NLRB Social Media Policy Implications

Here is a good article on how companies should approach their social networking policies in light of the free speech implications of impending NLRB ruling on what employees can say about their employer.

I’ve posted about this before but what I like about this article is how it suggests drafting specific examples giving employees guidelines of what’s appropriate and what’s not.  Not only are these policies likely to be more enforceable but they will also help employees have a clearer idea of what’s expected of them as well.

Additional Online Protection for Employees?

This article adds an interesting, additional protection employees may have under the National Labor Relations Act.  “Concerted Activity” which is where workers act for the mutual aid and protection of each other may make it difficult for someone speaking to colleagues on a social networking website to be terminated.

However, if that person is bad mouthing their employer to the public at large which may include colleagues, I’m not so sure their speaking out would qualify as concerted activity on the NLRB.

Social Media Rulings Top E-Discovery Year in Review

In Kroll’s OnTrack Discovery Trends for 2010, two decisions involving social networking are cited.

• The first is the Quon case where the court ruled that employees should have understood that their employer might have a need to search private text messages on a company owned pager.
• The second is the more recent New York State Court Romano case which states that parties have a right to even the private portions of social networking sites because, sharing information with others “is the very nature and purpose” of social networking.

Should anyone who agrees or consents to sharing information about themselves online reasonably expect to have a lesser right to privacy because of the agreement to share?