Employers: Twitter is Going Crazy Over #InternationalMensDay Hashtag

This will be a short post. Earlier this week we posted an article that discussed 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 that article:  The #InternationalMensDay hashtag is currently trending on Twitter (right now at 114K tweets). 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: Title VII and many state laws prohibit discrimination based on gender. 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.

ARTICLE BY  Peter T. Tschanz of Barnes & Thornburg LLP
© 2015 BARNES & THORNBURG LLP

Facebook: Second Circuit “Likes” Employee Rights Under the NLRA

Employers should continue to proceed with caution before disciplining employees for their Facebook activity. In Three D, LLC d/b/a Triple Play Sports Bar and Grille v. NLRB, the Federal Appeals Court for Connecticut, New York and Vermont recently upheld a National Labor Relations Board decision that found that one employee’s “liking” another employee’s comments about the terms and conditions of their employment deserved protection under the National Labor Relations Act. The Court upheld the Board’s decision that terminating those employees was illegal.

In Three D, LLC, the employees of a sports bar had a discussion on Facebook about their employer’s alleged mishandling of their tax withholding. The exchange included both negative comments about their workplace and profanity. One of the employees joined into the conversation by writing a response, while another simply “liked” a co-worker’s statements. The employees happened to be Facebook friends with the bar’s owner’s sister, who told the owner about the post. The owner fired the employees, some of whom were interrogated about the posting and threatened with legal action before their termination. The Board found that this was illegal, and the Employer appealed to the Second Circuit.

In recent years the NLRB has been very open about focusing its efforts on the non-unionized workforce. Many employers assume that because they do not have a union, they do not have to worry about the National Labor Relations Act. However, the Act protects the rights of all employees-unionized or not-to engage in concerted activities for their mutual aid or protection. This includes talking together about their working conditions, wages, and even criticizing management. Interfering with that right may be considered an unfair labor practice.

Before the decision in Three D, LLC, the Board had held that the Act protected Facebook posts/conversations about working conditions. The Board did not make clear whether or not simply “liking” a post constituted enough employee participation to count as protected activity. Three D, LLC made clear that at least in Connecticut, Vermont and New York, such activity merits NLRA protection.

An Employer naturally wants to act when its employees post negative or obscene comments about their workplace or their supervisor on Facebook. It is a public forum that the Employer cannot control, and interesting messages can go viral. Three D, LLC does not change the law that Employers have an interest in preventing negative comments about their products or services and protecting their business reputation. An employee’s public communications may lose protection of the Act if sufficiently disloyal or defamatory. This can happen if the statements are not connected with an ongoing labor dispute or are made maliciously and with knowledge of their falsity. However Employers must tread carefully before disciplining employees for their social media use to air workplace grievances.

All in all, Employers should continue to take a close look at their actions in response to employee Facebook posts, even if they do not “like” it.

© Copyright 2015 Murtha Cullina

Facebook: Second Circuit "Likes" Employee Rights Under the NLRA

Employers should continue to proceed with caution before disciplining employees for their Facebook activity. In Three D, LLC d/b/a Triple Play Sports Bar and Grille v. NLRB, the Federal Appeals Court for Connecticut, New York and Vermont recently upheld a National Labor Relations Board decision that found that one employee’s “liking” another employee’s comments about the terms and conditions of their employment deserved protection under the National Labor Relations Act. The Court upheld the Board’s decision that terminating those employees was illegal.

In Three D, LLC, the employees of a sports bar had a discussion on Facebook about their employer’s alleged mishandling of their tax withholding. The exchange included both negative comments about their workplace and profanity. One of the employees joined into the conversation by writing a response, while another simply “liked” a co-worker’s statements. The employees happened to be Facebook friends with the bar’s owner’s sister, who told the owner about the post. The owner fired the employees, some of whom were interrogated about the posting and threatened with legal action before their termination. The Board found that this was illegal, and the Employer appealed to the Second Circuit.

In recent years the NLRB has been very open about focusing its efforts on the non-unionized workforce. Many employers assume that because they do not have a union, they do not have to worry about the National Labor Relations Act. However, the Act protects the rights of all employees-unionized or not-to engage in concerted activities for their mutual aid or protection. This includes talking together about their working conditions, wages, and even criticizing management. Interfering with that right may be considered an unfair labor practice.

Before the decision in Three D, LLC, the Board had held that the Act protected Facebook posts/conversations about working conditions. The Board did not make clear whether or not simply “liking” a post constituted enough employee participation to count as protected activity. Three D, LLC made clear that at least in Connecticut, Vermont and New York, such activity merits NLRA protection.

An Employer naturally wants to act when its employees post negative or obscene comments about their workplace or their supervisor on Facebook. It is a public forum that the Employer cannot control, and interesting messages can go viral. Three D, LLC does not change the law that Employers have an interest in preventing negative comments about their products or services and protecting their business reputation. An employee’s public communications may lose protection of the Act if sufficiently disloyal or defamatory. This can happen if the statements are not connected with an ongoing labor dispute or are made maliciously and with knowledge of their falsity. However Employers must tread carefully before disciplining employees for their social media use to air workplace grievances.

All in all, Employers should continue to take a close look at their actions in response to employee Facebook posts, even if they do not “like” it.

© Copyright 2015 Murtha Cullina

Employee Fired for Facebook Selfie

facebook tab labelA Georgia employee was recently terminated from his position at a marketing firm as a result of a disgraceful Facebook “selfie.” In this case, the employee took a “selfie” with a co-worker’s African American son and uploaded the image as his profile picture. The employee’s picture resulted in a number of Facebook “friends” making derogatory, racist, and disgraceful remarks about the child (we won’t be posting them here). In response to some of the remarks, the employee described the child as “feral.” Not surprisingly, the company promptly terminated the employee’s employment.

Why is this story worth mentioning?  Because this Facebook post represents yet another clear example of social media activity that falls outside the scope of the National Labor Relations Act (NLRA).

As many employers are aware, 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.).

Analyzing whether a post amounts to “protected concerted activity” can be a difficult process. As a result, we believe it is best to work through the analysis with examples. On one end of the spectrum you may have a Facebook post between employees engaging in a civil discussion regarding workplace safety. This discussion would arguably constitute protected concerted activity. On the other end of the spectrum you may encounter a post like the example discussed above – arguably not protected concerted activity. Along the spectrum you may encounter various other examples:

  1. “We don’t get paid enough to work overtime for that d@mn jerk!”

  2. “Good thing OSHA isn’t around because my dumb boss doesn’t care about safety.”

  3. “Our best customer, Mr. Smith, is a jerk.”

  4. “The boss is too old to run the company.”

  5. “I am going to beat up my supervisor and key his car.”

Examples 1 and 2 arguably constitute “protected concerted activity.” Examples 3-5 arguably do not. Remember: the farther the post strays from the “terms and conditions of employment,” the more likely discipline will be permissible. Of course the analysis is much more complex than this. Many other factors could come into play. As such, it is always prudent to involve outside counsel when evaluating whether an employee should be disciplined for a social media post.

© 2015 BARNES & THORNBURG LLP

Legal Marketing Stats Lawyers Need to Know

Using market trends to inform your law firm marketing efforts is a must for solos and small firms that have limited budgets and resources to market their firms.

Google recently aggregated research from FindLaw and its own inhouse data to provide a look at the legal market trends that should shape your legal marketing initiatives:

74% of prospects beginning a search online end up contacting the office via phone. (FindLaw U.S. Consumer Legal Needs Survey 2014)

87% of people who contact an attorney go on to hire an attorney and 72% of them only contact one attorney. (FindLaw U.S. Consumer Legal Needs Survey 2014)

96% of people seeking legal advice use a search engine. (Google Consumer Survey, Nov 2013)

38% of people use the Internet to find an attorney. (FindLaw U.S. Consumer Legal Needs Survey 2014)

62% of legal searches are non-branded (i.e., generic: “Phoenix divorce attorney,” etc.). (FindLaw U.S. Consumer Legal Needs Survey 2014)

74% of consumers visit a law firm’s website to take action. (Google Legal Services Study Sept 2013)

25% of people researching legal topics visit YouTube during the process. (YouTube Internal Data 2012)

85% use online maps to find legal service locations. (Google Legal Services Study Sept 2013)

69% use both a smartphone and a PC for research. (Google Legal Services Study Sept 2013)

31% of all law firm related website traffic comes through mobile search (FindLaw Aggregated Hosted Site Data 2014)

71% of people looking for lawyer think it is important to have a local attorney. (FindLaw U.S. Consumer Legal Needs Survey 2014)

So what do you need to do to convert leads based on these facts? Here are a few action steps:

Provide multiple contact options — phone, email, online chat, etc.

Provide a mobile-friendly version of your website.

Have an intake system that allows consumers to reach your firm on the first call and intake specialists trained to convert consumers into clients.

Concentrate on local SEO to ensure your website shows up well in local search.

© The Rainmaker Institute, All Rights Reserved

8 Proven Ways to Boost Engagement for Your Facebook Posts

If you’re using Facebook to “sell” your law firm, you are probably disappointed in your results.  You see, Facebook is about engagement and anything that smacks of a hard-sell is usually tuned out.

You will get much better results if you simply surrender to what Facebook can deliver, which is an opportunity to meet new prospects and to share your knowledge that may someday lead to new business.

A lot of new business connections occur on Facebook based on people you used to know –old high school or college friends that you connect with there and then educate them naturally on what you do now.  In that sense, approaching Facebook as a referral source cultivation opportunity could be a mindset that will pay you big dividends in the future.

That said, there are certain things you can do that research shows leads to more engagement with your Facebook posts.

According to Shareaholic research, social media now drives more traffic (31.2%) to the websites of people and organizations that post on social media sites than any other channel, including search. Facebook dwarfs all other social networks for driving that traffic, accounting for 25% of all website traffic coming from social media!

BuzzSumo recently analyzed 500 million Facebook posts to discover what types of posts create the most engagement. Use this data to plot your posting strategy and you will likely see an uptick in the number of likes, comments and shares your posts get on Facebook:

  1. Schedule evening posts. Posts published between 10 p.m. and 11 p.m. ET get 88% more interactions than the average Facebook post.

  2. Use images. Image posts get 179% more interactions than the average Facebook post.

  3. Pose a question. Posts ending with a question get 162% more interactions than the average post.

  4. Use video. Videos are the most shared post type on Facebook, averaging 89.5 shares per video.

  5. Post on Sundays. Posts published on a Sunday get 52.9% more interactions than the average post.

  6. Keep posts brief. Posts with 150-200 characters performed the best, averaging 238.75 shares.

  7. Post directly to Facebook. Posting with a third party tool results in 89.5% less engagement than posting directly to Facebook.

  8. Link to longer content. Posts that link to long form content (2,000+ words) receive 40% more interactions than linking to shorter content.

Just like any social media network, the lion’s share of the attention goes to those who interact frequently – and genuinely – with followers and fans. Knowing how valuable and limited your time may be for social media marketing, you need to make efficient use of it to get the maximum benefit.  These tips can help you do just that.

© The Rainmaker Institute, All Rights Reserved

Study Reveals How Age Affects Consumers’ Social Media Habits [INFOGRAPHIC]

A new study from Accenture Interactive’s Acquity Group entitled, 2015 Next Generation of Commerce Study, reveals that while everyone and their grandmother is on social media these days, what they like and share is vastly different.

The report is based on surveys of more than 2,000 U.S. consumers on their digital engagement habits and preferences. Responses were broken down based on demographics, including age and gender.

What the researchers found is the consumers have high expectations from brands that seek to engage with them online. Driving this trend are consumers aged 18-30, who have grown up in a digital world that thrives on sharing.

The study reveals that almost 50% of consumers under the age of 50 have tried a service or product as a result of a campaign or ad on social media. Only about 30% of those who are 51-68 were so inclined, and only 14% of those over the age of 69 would try a service or product because they saw it on social media.

What is most surprising is that Facebook is considered to be the most trustworthy channel for content created by a company or brand.

Younger generations are more likely to trust social channels than their older counterparts.

Twenty-nine percent of college-aged consumers (ages 18-22) and 32% of Millennials (ages 23-30) rank Facebook #1, while only 16% of Baby Boomers (ages 52-68) do the same. Older consumers are more likely to trust traditional media, such as print (27%) or online news (20%).

This infographic breaks down the key data points from the Acquity Group study on what channels are most trusted and what types of content consumers are most likely to share with their networks:Study Reveals How Age Affects Consumers’ Social Media Habits

© The Rainmaker Institute, All Rights Reserved

Delaware Adds to Growing Patchwork of Social Media Laws

On August 7, Delaware Governor Jack Markell signed a law to prohibit employers from interfering with the personal social media accounts of their prospective and current employees.  The new law, which also took effect on August 7, defines “personal social media” to encompass any account on a social networking site created and operated by a prospective or current employee exclusively for his or her personal use.  The term does not include accounts created or operated by an employer and that are operated by an employee as part of his or her employment.

Specifically, the new law prohibits an employer from requesting or requiring a prospective or current employee to:

  • disclose a username or password for the purpose of allowing the employer to access personal social media;

  • access personal social media in the presence of the employer;

  • use personal social media as a condition of employment;

  • divulge any personal social media (except as otherwise permitted by the new law);

  • add a person, including the employer, to the list of contacts associated with the prospective or current employee’s personal social media,

  • invite or accept an invitation from any person, including the employer, to join a group associated with the prospective or current employee’s personal social media; or

  • alter settings on the prospective or current employee’s personal social media that affect a third party’s ability to view the contents of the medium.

The new law also forbids an employer from taking adverse action against a prospective or current employee for failing to comply with any of these requests or demands.

Despite these broad prohibitions, nothing in the new law prevents an employer from:

  • exercising its right or obligation under its personnel policies, federal or state law, case law, or other rules or regulations to require or request that an employee divulge a username, password, or social media “reasonably believed to be relevant” to an investigation of alleged employee misconduct or violation of applicable laws and regulations (so long as the social media is used solely for purposes of that investigation or a related proceeding);

  • requiring or requesting an employee to disclose a username, password, or other accessing credentials for (i) an electronic communication device supplied by or paid for in whole or in part by the employer; or (ii) an account or service provided by the employer, obtained by virtue of the employee’s employment relationship, or used for the employer’s business purposes;

  • accessing, blocking, monitoring, or reviewing electronic data stored on an employer’s network or on an electronic communications device supplied by or paid for in whole or in part by the employer;

  • complying with a duty to screen prospective or current employees, or to monitor or retain employee communications, (i) under federal or state law or by a self-regulatory organization, as defined in the Securities and Exchange Act of 1934 (like FINRA); or (ii) in the course of a law enforcement employment application or officer conduct investigation performed by a law enforcement agency; or

  • accessing, using, or viewing information about a prospective or current employee otherwise available in the public domain.

The new Delaware law continues a growing trend across the country.  Twenty-one other states have similar laws restricting employer access to a prospective or current employee’s personal social media account, including Arkansas, California, Colorado, Connecticut, Illinois, Louisiana, Maryland, Michigan, Montana, Nevada, New Hampshire, New Jersey, New Mexico, Oklahoma, Oregon, Rhode Island, Tennessee, Utah, Virginia, Washington, and Wisconsin.

© 2015 Proskauer Rose LLP.

Twitter Terrorism: Criminals Choose the Hack Attack

In what appears to be yet another brazen demonstration of capability following an earlier hijack of government social media sites, a group calling itself the Syrian Electronic Army (SEA) recently hacked into the U.S. Army’s main news and public information website, positing its own message for website visitors: “Your commanders admit they are training the people they have sent you to die fighting.” In response, the Army was forced to shut down the site to implement additional security measures to protect its systems.

Earlier this year, two of the U.S. military’s Central Command social media websites on YouTube and Twitter were similarly attacked and compromised. There, organization profile images were replaced by those of ISIS supporters on the official Twitter page, and two ISIS propaganda videos were uploaded to the Central Command YouTube account. Over the past several years, SEA has initiated similar attacks on the Twitter accounts of the BBC, The New York Times, 60 Minutes and the Associated Press.

Business Concerns

While the U.S. government reported that none of the internal systems were compromised and that there was no loss of classified information, the attacks have certified the anxiety of many business leaders over the potential vulnerability of their own companies, and highlight the concerns regarding the lack of knowledge or ability to prevent such attacks. Recent surveys have confirmed that risks associated with social media, whether through external portal access or internal sabotage, are among the top concerns facing businesses in 2015.

Without question, social media has become a crucial advertising vehicle for thousands of businesses around the world. The number of Facebook, Twitter, LinkedIn and other social media users continues to grow at an exponential rate, allowing businesses access to many new customers and clients every day. The ability to maintain control over these new electronic profiles, however, has become increasingly difficult as the perpetrators become more skilled and the targets more prized. In one particularly publicized account in 2013, social media hackers changed the Twitter account name of a premiere fast-food company to that of its chief competitor and posted multiple offensive tweets. Thereafter, damage control was all that could be done.

Businesses in 2015 have become enthralled by virtually unlimited access to customers and business partners via online platforms. Unfortunately, many have focused on the potential profits arising from such undertakings without sufficient consideration for the problems that too frequently arise from the use of such platforms. Social media has become the soft underbelly of many growing businesses eager for success but unaware of its vulnerabilities. In addition to direct attacks, courthouses nationwide have been flooded by lawsuits tied to the use and regulation of social media sites. The governance of employee use of social media, ownership of content and retention of information gathered through social media are generating more litigation every day. While increased exposure may be the incentive, preventative medicine will likely prove integral to long-term success.

Such “preventative medicine” includes not only the appropriate policies and procedures on access to and use of social media, but also an understanding of the vulnerabilities created by using these online platforms.  Most importantly, organizations must train their employees on these issues. Defending itself from perils arising out of social media starts at the first line of defense – the user.

© 2015 Wilson Elser

Gone, But Not Forgotten – A Deactivated Facebook Account Can Be Discoverable

Courts have long grappled with social media in a legal context. The struggle to understand social media issues — and to craft coherent applicable legal policy — renders Crowe v. Marquette Transportation Co. Gulf-Inland, LLC amusing to show how the less-than-honest actions of an employee-plaintiff can make these difficult legal questions fairly simple for a court.

In May of 2014, Brannon Crowe sued Marquette Transportation, his employer, for an injury to his knee that he claimed to have suffered in an accident at work. Interestingly, however, Crowe allegedly sent a co-worker a message on Facebook which stated that he received the injury during a fishing trip, and not at work. When confronted with the message to the co-worker by opposing counsel during a deposition, Crowe stated the account the message was sent from was Brannon “CroWe,” and it couldn’t be his because he didn’t have a capital “W” in his last name.

Facebook e-discovery in employment litigationAt the deposition, Crowe also said that he no longer had an account after the previous October, and his response to a discovery request for the contents of his account was that, in addition to such a request being vague, overbroad and unduly burdensome, he didn’t presently have a Facebook account. The court ordered Crowe to provide the contents of his account for the court to review in camera to determine if the contents of the account should indeed be discoverable. Later, however, Crowe’s counsel submitted to the court 4,000 pages of Facebook account information from the Brannon CroWe account, with an interesting wrinkle – the records of the account indicate that the account was deactivated – not deleted – four days after the discovery request for the account’s contents.

The court was understandably unamused, and suggested that the in camera review of 4,000 pages of Facebook account information would be a waste of time since this account information should have been produced earlier in response to Marquette’s request. The contradiction with Crowe’s testimony alone was enough to render the account information discoverable. Rather than review the documents fully in camera, the court ordered Crowe to turn over every single page of the Facebook account history to Marquette, as well as any login information for any Facebook accounts Crowe had at that time or in the past, and Crowe was ordered to consent to any authorization for Marquette to subpoena his Facebook information.

In effect, Crowe made the contents of the account discoverable through his attempts to keep it from being discovered, and that made the court’s decision on the issue clear. Luckily for Crowe, he only deactivated the account rather than deleted it, since he had a duty to preserve evidence in litigation. Spoliation of evidence is the negligent or intentional destruction or alteration of evidence that may be required in a lawsuit. Even though the evidence doesn’t look good for Crowe in the present case, had he deleted the account entirely, he would have been subject to the spoliation inference, which is a negative evidentiary inference in favor of the opposing party. A showing that a party has destroyed relevant evidence can lead to punitive sanctions against him as well.

Social media provides an abundant resource of data about a litigant, and both employers and employees alike should be a wary of even private messages sent to others in that context. When employees raise issues against employers in a legal setting, their interactions with coworkers on social media may be discoverable. This case also raises questions about how far those involved in legal proceedings can or should go to protect themselves with regard to their social media accounts. As courts become increasingly comfortable with the legal implications of social media and technology, issues such as evidence spoliation through deactivation and deletion will become more and more prominent as a trap for the unwary.

© 2015 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.