Microsoft Acquiring LinkedIn as Move into Enterprise Social Media

Linkedin MicrosoftMicrosoft has announced that it is buying LinkedIn for $26.2 billion, one of the largest tech acquisitions in history, and that it intends to use the business social media giant to put Microsoft at the center of our work lives.

Currently, LinkedIn has 433 million members in 200 countries. Microsoft has 1.28 billion Office users worldwide. Microsoft CEO Satya Nadella said in an interview with Bloomberg:

“This is about the coming together of the leading professional cloud and the leading professional network. This is the logical next step to take. We believe we can accelerate that by making LinkedIn the social fabric for all of Office.”

Nadella said that Microsoft’s vision is to place your LinkedIn profile at the center of your online work life, connecting it with Windows, Outlook, Skype, PowerPoint and other Microsoft products.

For example, Cortana (Microsoft’s digital assistant) could provide users with information on other participants in an upcoming meeting by pulling data from LinkedIn profiles. Members working on a project could pull up LinkedIn articles concerning their project or use LinkedIn profiles to search for an “expert” to help with the project.

Microsoft also sees LinkedIn playing a major role in developing a new customer relationship management (CRM) tool for sales organizations. LinkedIn analytics could be integrated with Microsoft’s Dynamics tool, which competes with Salesforce.com, to assist companies with managing their customers.

Here’s a CNBC interview with Nadella and LinkedIn CEO Jeff Weiner explaining the opportunities.

© The Rainmaker Institute, All Rights Reserved

Friend Request Denied: Judge Asks Attorneys to Refrain from Social Media Searches of Jurors

In late March 2016, a California federal judge asked both Google, Inc. and Oracle America, Inc. to voluntarily consent to a ban against Internet and social media research on empaneled or prospective jurors until the conclusion of the trial.

The case at issue is Oracle America, Inc. v. Google, Inc., a long-standing copyright infringement suit in which Oracle claims Google’s Android platform infringed various Oracle copyrights. This “high-profile lawsuit” has been making its way through the courts since 2010. Before the voir dire commenced in the current proceedings before the Northern District of California, Judge William Alsup realized that the parties intended to “scrub” Facebook, Twitter, LinkedIn, and other social media sites to gain personal information about the potential jurors.

In response to this realization, Judge Alsup issued an order asking the parties to voluntarily refrain from searching the Internet and social media accounts for personal information about the empaneled or prospective jurors prior to the verdict. While Judge Alsup stated that it was within the discretion of the court to order a complete ban, the court stopped short of issuing an outright ban.

Despite his objections to Internet research, Judge Alsup accepted the premise that social media and Internet searches of jurors are useful to attorneys. Information pulled from these searches can help attorneys during the voir dire process. For example, attorneys can use this personal information strategically while exercising their preemptory challenges or can rely on personal information about a potential juror to support a for-cause removal. Even during the trial, ongoing searches of social media sites can shed light on whether a juror gives or receives commentary about the case.

Despite the potential benefits, however, Judge Alsup issued three reasons in support of restricting these Internet searches.

  • First, if jurors knew that attorneys had conducted Internet searches of them, jury members would be more likely to stray from the Court’s admonition not to conduct Internet searches about the case. Because this high-profile case has been widely discussed in the media, the court warned of an “unusually strong need” to prevent jury members from conducting Internet searches.

  • Second, if attorneys learn of personal information about jury members from social media websites, they may be tempted to make personal appeals during arguments and witness interrogations in an attempt to pander to a jury member’s interests. The court warned that this behavior was out of bounds.

  • Third, the privacy of the jury members should be protected. Judge Alsup noted that empaneled or prospective jurors are not “celebrities,” “public figures,” or “a fantasy team composed by consultants.” Because jurors are citizens willing to serve their country and bear the burden of deciding disputes, Judge Alsup emphasized that their privacy matters.

In his order, Judge Alsup referenced Formal Opinion No. 466 from the American Bar Association. This formal opinion held that it is ethical, under certain restrictions, for attorneys to conduct Internet searches on prospective jurors. The ABA determined that a “passive review” of a juror’s website or social media page (i.e., a review that does not make an “access request” and of which the juror is unaware) is not considered an ex parte communication with jurors. Judge Alsup noted, however, that just because these searches are not unethical does not mean that attorneys have an inalienable right to perform these searches.

According to Judge Alsup’s order, if the parties do not voluntarily agree to refrain from Internet and social media searches, they will have to abide by certain rules during the jury selection process. First, the attorneys will be required inform the jury pool upfront about the nature of their searches prior to jury selection. Also, once the attorneys have made this announcement, they will then have to allow the potential jurors a few minutes to adjust their social media privacy settings on their mobile devices.

In short, the judge’s order emphasized the court’s “reverential respect” for juries, asking the attorneys to refrain from performing Internet and social media searches for jurors’ personal information until the trial is over.

© 2016 Proskauer Rose LLP.

Burrito Bowls, Guacamole, &. . .Tweets? NLRB Judge Finds Social Media Policy Unlawful

There’s more bad news this week for restaurant chain Chipotle Mexican Grill, but this time it has nothing to do with the food.

Last year, we heard about an NLRB decision upholding an administrative law judge’s (ALJ) finding that the restaurant had committed an unfair labor practice. According to the decision, Chipotle had allegedly threatened and interrogated employees who engaged in discussions about their pay. The employee at issue in the case had worked at a Chipotle restaurant in St. Louis, Missouri. He was also a union member who participated in strikes and was involved with the “Show Me 15” campaign for a higher minimum wage.

That decision is currently pending appeal, and Chipotle has suffered another NLRB loss this week. An ALJ ruled against the restaurant and found an unfair labor practice charge for what the judge described as the company’s unlawful social media code of conduct. The case involves a Chipotle employee in Havertown, Pennsylvania, named James Kennedy. By way of background, Chipotle employs a national social media strategist who is responsible for reviewing employees’ social media posts to determine whether any of them violate the company’s social media policy.

In early 2015, some of Kennedy’s tweets were reviewed by the strategist, including one where Kennedy had replied to a few customers’ tweets. For example, in response to a customer who tweeted “Free chipotle is the best thanks,” Kennedy tweeted “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Then, replying to a tweet posted by another customer about guacamole, Kennedy wrote “it’s extra not like #Qdoba, enjoy the extra $2.

Chipotle’s social media strategist emailed the regional manager, forwarded the tweets, and told the manager to ask Kennedy to delete the tweets and to review the company’s social media policy with him. Kennedy was subsequently terminated following a dispute with management over an unrelated issue.

The ALJ evaluated whether Chipotle maintained an unlawful social media policy based on the following provisions:

  • If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information.
  • You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.

Generally a violation of the act based on an unlawful work rule is dependent upon a showing of one of the following: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Lutheran Heritage Village-Livonia, 343 NLRB 646, 646–647 (2004). The ALJ found that the company’s social media policy failed on the first and third prongs.

Picking apart the provision, the ALJ relied on other Board decisions which found rules prohibiting “derogatory” statements to be unlawful. The ALJ also took issue with the prohibition on “false” statements, saying, “[M]ore than a false or misleading statement by the employee is required; it must be shown that the employee had a malicious motive.” The ALJ also found no relief based on the policy’s disclaimer which said “This code does not restrict any activity that is protected or restricted by the National Labor Relations Act, whistleblower laws, or any other privacy rights.”

Although the employee was not ultimately terminated for posting the tweets, employers can still get in trouble with the NLRB where social media policies are concerned. Considering NLRB decisions regarding work rules and handbook policies apply regardless of whether the employees are unionized. We’ll follow this case as it makes its way to the full Board.

© 2016 BARNES & THORNBURG LLP

Burrito Bowls, Guacamole, &. . .Tweets? NLRB Judge Finds Social Media Policy Unlawful

There’s more bad news this week for restaurant chain Chipotle Mexican Grill, but this time it has nothing to do with the food.

Last year, we heard about an NLRB decision upholding an administrative law judge’s (ALJ) finding that the restaurant had committed an unfair labor practice. According to the decision, Chipotle had allegedly threatened and interrogated employees who engaged in discussions about their pay. The employee at issue in the case had worked at a Chipotle restaurant in St. Louis, Missouri. He was also a union member who participated in strikes and was involved with the “Show Me 15” campaign for a higher minimum wage.

That decision is currently pending appeal, and Chipotle has suffered another NLRB loss this week. An ALJ ruled against the restaurant and found an unfair labor practice charge for what the judge described as the company’s unlawful social media code of conduct. The case involves a Chipotle employee in Havertown, Pennsylvania, named James Kennedy. By way of background, Chipotle employs a national social media strategist who is responsible for reviewing employees’ social media posts to determine whether any of them violate the company’s social media policy.

In early 2015, some of Kennedy’s tweets were reviewed by the strategist, including one where Kennedy had replied to a few customers’ tweets. For example, in response to a customer who tweeted “Free chipotle is the best thanks,” Kennedy tweeted “nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Then, replying to a tweet posted by another customer about guacamole, Kennedy wrote “it’s extra not like #Qdoba, enjoy the extra $2.

Chipotle’s social media strategist emailed the regional manager, forwarded the tweets, and told the manager to ask Kennedy to delete the tweets and to review the company’s social media policy with him. Kennedy was subsequently terminated following a dispute with management over an unrelated issue.

The ALJ evaluated whether Chipotle maintained an unlawful social media policy based on the following provisions:

  • If you aren’t careful and don’t use your head, your online activity can also damage Chipotle or spread incomplete, confidential, or inaccurate information.
  • You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to Chipotle, our employees, suppliers, customers, competition, or investors.

Generally a violation of the act based on an unlawful work rule is dependent upon a showing of one of the following: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.” Lutheran Heritage Village-Livonia, 343 NLRB 646, 646–647 (2004). The ALJ found that the company’s social media policy failed on the first and third prongs.

Picking apart the provision, the ALJ relied on other Board decisions which found rules prohibiting “derogatory” statements to be unlawful. The ALJ also took issue with the prohibition on “false” statements, saying, “[M]ore than a false or misleading statement by the employee is required; it must be shown that the employee had a malicious motive.” The ALJ also found no relief based on the policy’s disclaimer which said “This code does not restrict any activity that is protected or restricted by the National Labor Relations Act, whistleblower laws, or any other privacy rights.”

Although the employee was not ultimately terminated for posting the tweets, employers can still get in trouble with the NLRB where social media policies are concerned. Considering NLRB decisions regarding work rules and handbook policies apply regardless of whether the employees are unionized. We’ll follow this case as it makes its way to the full Board.

© 2016 BARNES & THORNBURG LLP

How to Set a Simple Social Media Strategy for Your Law Firm

With the proliferation of new social media networks and seemingly constant changes to existing ones, attorneys aren’t the only ones confused about how to tackle social media for marketing.

Add to that the fact that most attorneys don’t have much time to devote to social media — nor do they have a department of experts at their beck and call — and you understand the need for setting a strategy that is as simple and sensible as possible for busy lawyers.

I used to recommend that attorneys be somewhat active on all social networks. That was when there were two or three of them. Now it would be silly to make that recommendation. Instead, you need to narrow your focus to the networks that your clients frequent. And how do you know what those are? You begin by defining the key demographics of your target audience.

Those key demographics include gender, age, income, occupation, industry and education level. These will guide you to which social networks you are likely to find your ideal clients. You can find demographic information for most social networking platforms on the Pew Research Center website.

This social media checklist from the Whole Brain Group will provide you with a how-to guide for completing the important exercise of setting a simple social media strategy that will work for your law firm:

How to Set a Simple Social Media Strategy for Your Law Firm

© The Rainmaker Institute, All Rights Reserved

Is Your LinkedIn Profile Violating Attorney Advertising Rules? Depends.

Linkedin Logo NeonThe vast majority of lawyers have a LinkedIn page. Or if they don’t, their marketing department will make them create one eventually. Some use LinkedIn to build their profile and network, others to promote success, articles and speaking engagements. But is a LinkedIn page lawyer advertising and, if so, what must lawyers do to be sure they are on the right side of the Rules of Professional Conduct?

Rules 7.1 to 7.5 of the Massachusetts Rules of Professional Conduct govern lawyer advertising and solicitation. Some states, like New York, provide very detailed rules about what an advertisement may or may not include (or what it must include), how long it should be retained, etc.  In fact, whereas Mass. R. Prof. C. 7.1 contains only two sentences, its New York counterpart is more than three pages long.

Because of the more specific requirements in New York, an important issue for lawyers there (and other states with similarly detailed attorney advertising rules) is whether their individual profile on LinkedIn constitutes attorney advertising. If it is advertising, the attorney would have to comply with requirements like labeling the content “Attorney Advertising” and preserving a copy (of each iteration) for at least one year.

Last month, the Association of the Bar of the City of New York Committee on Professional Ethics issued a formal opinion that stated that a LinkedIn profile does not constitute attorney advertising unless it meets each of five criteria:

  • It is a communication made by or on behalf of the lawyer;
  • The primary purpose of the LinkedIn content is to attract new clients to retain the lawyer for pecuniary gain;
  • The LinkedIn content relates to the legal services offered by the lawyer;
  • The LinkedIn content is intended to be viewed by potential new clients; and
  • The LinkedIn content does not fall within any recognized exception to the definition of attorney advertising. Formal Opinion 2015-7.

The NYC Committee report noted that it had come to a different conclusion that the Professional Ethics Committee of the New York County Lawyer’s Association (“NYCLA”), which had concluded in March 2015 that “[a] LinkedIn profile that contains only one’s education and current and past employment does not constitute Attorney Advertising[, but] [i]f an attorney chooses to include information such as practice areas, skills, endorsements, or recommendations, the attorney must treat his or her LinkedIn profile as attorney advertising and include appropriate disclaimers pursuant to Rule 7.1.”NYCLA Ethics Op. 748 (2015).

For practitioners in Massachusetts, the New York debate may be academic. There is no question that Massachusetts lawyers may advertise on the internet. See Mass. R. Prof. C. 7.2(a) (“Subject to the requirements of Rules 7.1 and 7.3, a lawyer may advertise services through written, recorded or electronic communication, including public media.”). And, even if an attorney’s LinkedIn profile were considered to be “advertising” in Massachusetts, the only requirement that the lawyer must comply with is the same requirement that runs through all of the Rules of Professional Conduct: honesty. See Mass. R. Prof. C. 7.1 (“A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”). But this, of course, is the norm in all facets of legal practice. See, e.g., Mass. R. Prof. C. Preamble, 2.1, 3.3, 3.9, 4.1, 8.2, 8.4.

Thus, at least here in the Commonwealth, a lawyer who scrupulously insures that his or her LinkedIn profile is truthful and not at all false or misleading – including with respect to statements that the attorney is a “specialist” or “certified” in a particular field of law, see Mass. R. Prof. C. 7.4 – is within the bounds of our governing Rules.

© 2016 SHERIN AND LODGEN LLP

Is Inconsistent Application Of Social Media Policy Evidence Of Discrimination?

A District Court in Louisiana concluded recently that a television station’s inconsistent application of its social media policy entitled a terminated employee to defeat summary judgment regarding his discrimination claim.

The television station in question, KTBS, had implemented a social media policy that included a prohibition on employees responding to viewer complaints. The station also held a mandatory meeting at which the policy was discussed. Shortly thereafter, Chris Redford, a male on-air reporter, wrote a negative post on his Facebook page about a viewer who had commented on one of his stories. Upon being notified of Redford’s post, KTBS fired Redford for violation the station’s social media policy.

Redford sued KTBS, alleging, among other things, gender discrimination because the station had not terminated a female on-air personality (Sarah Machi), who also had written a negative post on her Facebook page in response to a viewer’s comment.

KTBS moved for summary judgment, including as to Redford’s gender discrimination claim. In support of its motion, the station admitted that it did not consider an employee’s negative comments on his or her “private Facebook page” regarding a viewer to violate its social media policy. Although both Redford and Machi had posted negative comments on their personal Facebook pages, the station argued that Machi’s situation was different because her Facebook page was protected by privacy settings that only permitted it to be viewed by people she had “friended” whereas Redford’s Facebook page was public and he used it to promoted his work at KTBS. The court was not persuaded by the station’s attempted distinction. Rather, the court determined that the station’s inconsistent application of its social media policy to Redford’s and Machi’s same conduct—i.e., Redford was fired whereas Machi was not disciplined at all—created a triable issue of fact. Therefore, it denied the station’s motion as to Redford’s gender discrimination claim.

The important takeaway for employers, as we previously have discussed in various posts, is the critical importance of consistently applying its social media policies. It is not sufficient merely to have a social media policy. It is just as important to apply it in a consistent manner to avoid potential discrimination claims.

© 2010-2016 Allen Matkins Leck Gamble Mallory & Natsis LLP

EMPLOYERS: The #ElderlyChristmasSongs Hashtag Is Trending On Twitter

We have posted numerous blogs discussing the need for employers to stay on top of what is trending on the Internet. Why? Because trending topics can sometimes lead to controversial discussions that might not be consistent with an employer’s EEO Policy. As a result, we explained that it would be prudent to understand what may be the current topic being discussed around the watercooler.

Here is a follow up to those posts. The #ElderlyChristmasSongs hashtag is currently trending on Twitter. What is the relevance of this topic to employers? A quick search shows that a lot of the content posted can be construed as inappropriate and/or discriminatory (although presumably meant to be humorous).  It’s the middle of the work day where we are – so we can only presume a lot of this content is being posted by employees in the workplace.

Remember: The Age Discrimination in Employment Act and many state laws prohibit discrimination based on age.  The more questionable content generated in the workplace, the better chance an employee can argue there is evidence of a convincing mosaic of discrimination tolerated by the employer. Be sure to remind employees of your company’s EEO policy if you come across any inappropriate content and/or discussions. And, as always, be sure to stay on top of trends that may have an impact in the workplace.

© 2015 BARNES & THORNBURG LLP

Sell-abrating Sensibly re: Social Media Campaigns

Sell-abrating Sensibly re: Social Media CampaignsThe holiday season is in full swing, which means brand owners and merchants are seizing the opportunity to capture cyber market share via social media campaigns.

While social media can be a great way to quickly generate brand buzz, you may want to take heed of the following seven tips to make sure your holiday social media campaign doesn’t turn into a big bah humbug:

  1. No Special Rules Apply – social media campaigns are not exempt from trademark infringement, false advertising, copyright, and right of publicity laws.  Do not say anything or use any images in a social media context that you wouldn’t put in print.
  2. Register company and key brand names as social media user names on popular social media sites such as Facebook, Twitter, and Instagram.
  3. Monitor social media sites for uses of confusingly similar names by third parties selling counterfeit goods, or using your trademarks in a way that creates negative publicity or a false association with your brand.
  4. Keep it Positive – Negative social media posts about a competitor often backfire, and rarely have the intended benefit of improving the poster’s own reputation.
  5. Hashtag #careful – Avoid making a social media faux pas; research and be sure you understand the meaning of viral hashtags before using them in your own social media postings.
  6. A Warning About Current Events  Avoid capitalizing on current events and/or tragedies. Instead, take time to thoroughly develop marketing campaigns that will speak to consumers regardless of timing.
  7. Not Always Sweet to Retweet – As tempting as it may be to retweet celebrities’ or politicians’ tweets, such seemingly innocuous tweets/retweets may have a polarizing effect on consumers/social media followers, or create potentially damaging false associations.

Article by Shana L. Olson & Lauriel F. Dalier of Sterne, Kessler, Goldstein & Fox P.L.L.C.

 © 2015 Sterne Kessler

The Viral Spiral: How An Employee’s Facebook Post Dragged Her Employer Into A Social Media Controversy

Instances of deplorable racism have sparked recent protests on the University of Missouri’s campus. Not surprisingly, these protests have received a significant amount of media attention. On Nov. 13, 2015, however, the world’s attention shifted to the horrific terrorist attacks in Paris. We have since been inundated with 24-hour news coverage on developments related to the war on terror.

Following the Paris attacks, the Washington Times released a story explaining how University of Missouri protestors had taken to Twitter to express disappointment with the fact that this tragedy was directing media attention away from their cause. College student Emily Faz, an employee of Wild Wing Café, apparently found this development unsettling. So what did she do? Faz took to Facebook to disseminate her opinion regarding the Washington Times article. Here is the content of her post:

I’m just going to leave this here. I swear if I see this B* at Southern, I’ll make you regret even knowing what a movement or a hashtag is, and you’ll walk away with your tail tucked. This whole black lives matter movement is misguided and out of hand. Maybe no one likes or takes y’all seriously because no one can see past your egotistical B*******. Some people might just look past it, but fair warning I’m am (sic) not one. All lives matter, that has always been the case, and you are part of the problem if you think other wise (sic).

Faz’s controversial post didn’t just go viral: it created a social media firestorm. Thousands of individuals took to Facebook and Twitter to condemn Faz’s commentary. Despite the criticism, a large number of supporters rushed to Faz’s defense. Many supporters claimed Faz was the target of a social media “witch hunt.” In their subjective view, Faz had done nothing more than share her opinion on a controversial subject. Nevertheless, she was being made the target of a significant amount of online harassment.

The ongoing debate intensified when the Internet turned its attention to Wild Wing Café. The business started receiving messages calling for Faz’s termination. The attention also unquestionably disrupted the company’s business operations.

What happened next? Rumors started to circulate that Wild Wing Café had terminated Faz’s employment. So Faz’s supporters took to Twitter to protest the company’s decision. The rumor was incorrect. The company did not terminate Faz’s employment and ultimately issued a statement to set the story straight.

Will Faz remain employed by Wild Wing Café? We don’t know. And that is not really the focus of this blog post. The issue we would like employers to focus on is this: A controversial Facebook post sparked a social media frenzy that unquestionably impacted this employer’s day-to-day operations.

The Big Picture

Faz’s Facebook post provides a vivid example of how an employee’s social media activity can have a very real impact in the workplace. This raises an important question: What should an employer do if an employee’s social media post goes viral and negatively impacts business operations?

Well, for starters, avoid the knee jerk reaction. Take a step back and evaluate the content of the post. For example, does it violate the company’s EEO policy? Does it provide evidence of a discriminatory animus? Examining social media content from this angle is critical to making an informed decision.

Additionally, consider whether the National Labor Relations Act (NLRA) will have an impact on your analysis. The NLRA provides some protection to employees engaging in social media activity when the content amounts to “protected concerted activity.” This occurs when two or more employees take action for their mutual aid or protection regarding the terms and conditions of employment (e.g., wages, hours, safety, etc.). For example, a social media controversy created by a group of employees complaining about wages may fall within the scope of “protected concerted activity.” As such, examining the social media content from this angle is also critical to making an informed decision.

Moreover, if an employer is leaning towards termination, evaluate whether the company may be setting itself up for a lawsuit. For example, has the company allowed controversial posts in the past? Will the employee be able to point to similarly situated individuals who received more favorable treatment? This is yet another angle an employer will have to consider in order to formulate a game plan.

What’s the bottom line? It’s all about assessing risk. And properly assessing risk will involve a careful analysis of the facts specific to each case. Employers are therefore encouraged to involve outside counsel when navigating this minefield.

One final note: We’ve repeatedly emphasized that it is critical for employers to monitor what is trending on the Internet. The debate regarding Faz’s social media activity only serves to underscore this point. To be sure, keeping up on what is trending probably won’t stop a controversial social media post from going viral,but it may provide an employer with more lead time to formulate a game plan.