Content provider ContentCrossroads.com recently developed an infographic about best practices for B2B marketers, including the most popular, most profitable and easiest content to develop for B2B marketers looking to gain the attention of prospects:
Tag: Social Media
Using Google Alerts to Get Topical News Quickly and Improve Your Content
Time is of the essence when taking someone from prospect to client.
Obtaining quick notice about local accidents and injuries and/or defective products can provide a competitive advantage.
When an accident has just occurred and a victim is deciding whether or not to hire an attorney, you want to be easy to find. If you are aware of accidents or defective products and pharmaceuticals early, you may have the opportunity to get the inside track on a case.
Posting alerts and information on your website, blog and Social Media may help your firm be more easily found and give you increased opportunities to get cases.
One tool to identify possible newsworthy topics to post on your site and Social Media platforms is Google Alerts. Every time something new is indexed by Google on your chosen topic, you will receive an e-mail. You can also set Google Alerts to email you a daily or weekly digest that includes either only the best topical matches or everything associated with your selected topic.
There are multiple ways to utilize Google Alerts. You can sign up for your target city/town names, state, etc. for local news. For practice area-targeted news, you can sign up to be alerted for variations of car accidents (and injuries), truck accidents (and injuries, major highways, etc.), train accidents (as well as major train names), hospitals (and hospital injuries, negligence) and drug or product names you wish to target, for example. There are endless possibilities; your usage will depend on what works best for your law firm and schedule. You can even sign up for Alerts on competitors’ names to follow what they are doing. You should set Alerts for your firm and attorneys. Doing this will help you manage your firm’s reputation by alerting you to good and bad news and give you time to respond appropriately.
To develop a list for your Google Alerts entries, ask your attorneys (or have a trusted attorney decide) which topics and locations each person will follow for news or blog information, then sign up for Google Alerts on those topics at http://www.google.com/alerts. When you spread keywords among different people, the time investment is less significant, especially if you schedule a fifteen-minute block each day to read through your alerts.
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Social Signals Rank Highest for Best Google Search Results
A new study from Searchmetrics shows that of 44 ranking factors, social signals account for 7 of the top 8 most highly associated with Google search results, The chart below shows the ranking importance for the top 22:
The top findings from the Searchmetrics Ranking Factors-Rank Correlation Study show the following SEO trends for 2013:
- Keyword domains and keyword links are not nearly as relevant as in the past
- Social signals directly correlate with better rankings
- Good content continues to be key
- The number of backlinks continues to be of high importance
- On-page technology (URL length, keywords in page titles, page descriptions, H1 and H2 tags, etc.) is still an important basic
This latest study makes it clear that you can no longer ignore social media if you are interested in showing up in Google search results.
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Law Firm Search Engine Optimization (SEO): Five Common Mistakes to Avoid
Long gone are the days when you could rely only on meta descriptions, title tags, and directory links to boost your firm’s website rankings in search engines. Thanks (or no thanks) to sites using destructive black-hat techniques, Google is on a mission to penalize those who try to win using spammy shortcuts, and reward sites that provide a great user experience.
Below is a list of 5 common mistakes in SEO that can be easily avoided:
1. Content that is engaging.
Search engines are designed to deliver the highest quality results to the user; therefore, your content should provide the answer to the visitor’s search query as well as a great user experience. If a user comes to your website and is not impressed with the content, they will quickly leave. When this happens, it indicates to search engines that your site is not offering supportive and relevant content based on that particular search query. You do not want this! You want users to visit your site and be engaged. Remember: write for your readers, not search engines.
2. Duplicate content
Duplicate content, in simple terms, is content that appears on more than one Web page. This is akin to a constantly skipping CD. In short, it’s annoying.
Google can easily determine when content is duplicated. One of the relatively new Google features is Google Authorship
To ensure they are offering users high value content, search engines take pages out of the rankings that are a duplication of other, higher authority pages. Also, duplicate content can lead to Google not trusting the overall quality of the site and penalizing its rankings.
Search engines want to provide users with a varied amount of results, not 20 pages with the same content. To ensure this, search engines omit pages that are a duplication of other, higher authority pages. Omitted pages don’t rank.
Additionally, if Google finds your duplicate content to be spammy, deceptive or an attempt to manipulate your rankings, Google may penalize your site by dropping its rankings.
3. Not using correct keywords
If a user cannot find your website, then what good is it?
If a website’s content is written about the term “vehicle wrecks,” but the majority of users are searching for “car accidents,” the website will miss out on a lot of potential business. It’s crucial to use the correct keyword targets to drive optimal traffic to your website.Target the right words by looking for terms most commonly used in searches. Our SEO specialists use a variety of tools, including Google’s keyword tool,to determine the words and phrases that have the highest search volume for your area of law. However, targeting only the most popular keywords may not improve your rankings. The higher the search volume for a keyword, the more websites you will compete with for rankings, so it’s vital to find a happy medium between the two. Don’t forget, however, that long tail searches (lesser used phrases words and phrases) obtain more relevant traffic than the highest volume words and phrases.
4. Over-optimization
Yes, there is such a thing as over-optimization!
Tactics such as excessive interlinking,keyword stuffed content and tags, and duplicate content within the same site are common over-optimization practices that can hurt your rankings.
Typically, anything over 3% keyword density is too much for a page. Links should only be placed on a page if they are relevant to the content posted on that same page. Remember the saying “too much of a good thing is bad?” Well, that pertains to SEO as well.
5. Assuming that SEO strategies are static. SEO is constantly changing!
There is no such thing as updating a site and never having to do so again. Google constantly changes its algorithm (examples: panda, penguin, so a website has to be reviewed occasionally. What works today may not work tomorrow; it’s important to stay up-to-date on SEO practices used on your site.
Also, by having a blog on your site and adding new posts regularly, you are providing fresh, new content. Google loves fresh content.
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Virtual Communications with Real Consequences: Terminations for Social Media Posts Continue to Draw the Attention of the National Labor Relations Board (NLRB)
In the late autumn of 2012, an otherwise innocuous private Facebook discussion amongst employees of Skinsmart Dermatology (Skinsmart) suddenly devolved into an expletive-laced tirade. At one point during the conversation an employee boasted that she told her supervisor to “back the freak off,” called her employer “full of sh**,” and dared Skinsmart to “fire” her and “[m]ake [her] day.”
Notably, none of the other participants in the Facebook chat directly responded to the employee’s comments. One of those participants, however, reported the employee’s remarks to Skinsmart, who promptly fired her after concluding that it was “obvious” she did not want to continue working there.
Following her termination, the employee filed an Unfair Labor Practice Charge (ULP) with the National Labor Relations Board (NLRB) claiming that Skinsmart fired her in violation of the National Labor Relations Act (NLRA). The NLRA prohibits an employer from interfering with or restraining an employee’s right to engage in “protected concerted activities.”
As background, “protected” activities include discussing wages, hours and other terms and conditions of employment with coworkers. “Concerted” activities include: (1) when an individual employee seeks to “initiate or to induce or to prepare for group action”; (2) where an individual employee brings “truly group complaints” to management’s attention; and (3) where employees discuss “shared concerns” among themselves prior to any specific plan to engage in group action.
After analyzing the evidence, the NLRB’s Division of Advice recommended dismissal of the employee’s ULP Charge. First, it found the terminated employee’s Facebook comments were “an individual’s gripe” rather than an expression of “shared concerns” over working conditions among employees. Second, it found there was no evidence that the terminated employee’s coworkers viewed her remarks as an assertion of shared concerns regarding employment conditions. Consequently, the Division of Advice concluded that the employee did not participate in concerted activity, and therefore Skinsmart did not illegally fire her in response to her Facebook comments.
Significantly, before recommending dismissal of the ULP Charge, the Division of Advice also considered whether the terminated employee’s comments constituted “inherently concerted” activity that deserved protection under the NLRA.[1] While the Division of Advice ultimately ruled that they were not, its consideration of “inherently concerted” activity suggests that it will continue to interpret “protected concerted activity” as broadly as it can.
Under the “inherently concerted” analysis, an employee’s expressions may be considered protected concerted activity if those expressions involve “subjects of such mutual workplace concern” like wages, schedules, and job security, even if there was no contemplation of group action. Because the employee’s posts did not relate to any of those mutual workplace concerns, the Division of Advice concluded, the employee did not engage in “inherently concerted” activity.
In light of Skinsmart, before taking any adverse action against an employee for inappropriate social media communications, an employer should scrutinize the employee’s comments to determine whether they constitute an individual gripe or protected concerted activity. Because the NLRB has targeted “Facebook firings” as infringing on employees’ right to engage in protected concerted activity, we recommend that employers undertake this analysis with the benefit of counsel to minimize their exposure to a ULP Charge or other legal action.
[1] The term, “inherently concerted,” arose out of an earlier NLRB decision in 2012. See Hoodview Vending Co., 359 N.L.R.B. No. 36 (2012).
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Social Media & Emerging Employer Issues: Are You Protected?
On June 13, 2013, Business First of Louisville and McBrayer hosted the second annual Social Media Seminar. The seminar’s precedent, Social Media: Strategy and Implementation, was offered in 2012 and was hugely successful. This year’s proved to be no different. Presented by Amy D. Cubbage and Cynthia L. Effinger, the seminar focused on emerging social media issues for employers. If you missed it, you missed out! But don’t worry, a seminar recap is below and for a copy of the PowerPoint slides click here.
McBrayer: If a business has been designated an entity that must comply with HIPAA, what is the risk of employees using social media?
Cubbage: Employers are generally liable for the acts of their employees which are inconsistent with HIPAA data privacy and security rules. As employees’ use of social networking sites increase, so does the possibility of a privacy or security breach. An employee may be violating HIPAA laws simply by posting something about their workday that is seemingly innocent. For instance, a nurse’s Facebook status that says, “Long day, been dealing with a cranky old man just admitted into the ER” could be considered a HIPAA violation and expose an employer to sanctions and fines.
McBrayer: Should businesses avoid using social media so that they will not become the target of social media defamation?
Effinger: In this day and age it is hard, if not impossible, for a business to be successful without some use of social media. There is always the risk that someone will make negative comments about an individual or a business online, especially when anonymity is an option. Employers need to know the difference between negativity and true defamation. Negative comments or reviews are allowed, perhaps even encouraged, on some websites. If a statement is truly defamatory, however, then a business should make efforts to have the commentary reported and removed. The first step should always be to ask the internet service provider for a retraction of the comment, but legal action may sometimes be required.
McBrayer: When does a negative statement cross the line and become defamation?
Effinger: It is not always easy to tell. First, a statement must be false. If it is true, no matter how damaging, it is not defamation. The same goes for personal opinions. Second, the statement must cause some kind of injury to an individual or business, such as by negatively impacting a business’s sales, to be defamation.
McBrayer: Can employers ever prevent employees from “speaking” on social media?
Effinger: Employers should always have social media policies in place that employees read, sign, and abide by. While it is never really possible to prevent employees from saying what they wish on social media sites, some of their speech may not be protected by the First Amendment’s freedom of speech clause.
McBrayer: What constitutes “speech” on the internet? Is “liking” a group on Facebook speech? How about posting a YouTube video?
Effinger: This is a problem that courts and governmental employment agencies, like the National Labor Relations Board, are just starting to encounter. There is no bright-line rule for what constitutes “speech,” but it is safe to say that anything an employee does online that is somehow communicated to others (even “liking” a group or posting a video) qualifies.
McBrayer: Since a private employer is not bound by the First Amendment, can they terminate employees for social media actions with no repercussions?
Effinger: No! In fact, it could be argued that private employees are afforded more protection for what they say online than public employees. While a private employer has no constitutional duty to allow free speech, the employer is subject to state and federal laws that may prevent them from disciplining an employee’s conduct. As a general rule, private employees have the right to communicate in a “concerted manner” with respect to “terms and conditions” of their employment. Such communication is protected regardless of whether it occurs around the water cooler or, let’s say, on Twitter.
McBrayer: It seems like the best policy would be for employers to prohibit employees from discussing the company in any negative manner. Is this acceptable?
Effinger: It is crucial for companies to have social media policies and procedures, but crafting them appropriately can be tricky. There have been several instances where the National Labor Relations Board has reviewed a company’s policy and found its overly broad restrictions or blanket prohibitions illegal. Even giant corporations like General Motors and Target have come under scrutiny for their social media policies and been urged to rewrite them so employees are given more leeway.
McBrayer: Is social media a company asset?
Cubbage: Yes! Take a moment to consider all of the “followers”, “fans”, or “connections” that your business may have through its social media accounts. These accounts provide a way to constantly interact with and engage clients and customers. Courts have recently dealt with cases where a company has filed suit after a rogue employee stole a business account in some manner, for instance by refusing to turn over an account password. Accounts are “assets,” even if not tangible property.
McBrayer: What is the best way for an employer to protect their social media accounts?
Cubbage: Social media accounts should first be addressed in a company’s operating agreement. Who gets the accounts in the event the company splits? There are additional steps every employer should take, such as including a provision in social media policies that all accounts are property of the business. Also, there should always be more than one person with account information, but never more than a few. Treat social media passwords like any other confidential business information – they should only be distributed on a “need to know” basis.
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Yahoo!/Tumblr Deal and the Tax Cost of Cash Acquisition Payments
When Yahoo! recently acquired the blogging service Tumblr, the two companies structured the deal so that virtually all of the $1.1 billion price tag for Tumblr will be paid in cash. In the current economy, many companies, particularly tech companies, have a lot of cash available, making the more traditional payment in stock appear less desirable. However, tax planning during mergers or acquisitions can be invaluable because, with proper counsel, the organizations can anticipate and mitigate the tax ramifications for the companies, individuals and shareholders.
Specific information about any tax planning in the Yahoo!/Tumblr deal hasn’t been released, but let’s consider the potential tax consequences of an essentially all-cash deal.
Most of Tumblr’s existing shareholders likely purchased their stock for substantially less than it was valued at the time of Yahoo’s acquisition. Since capital gains taxes are levied on the difference between the purchase price and the sale price, those Tumblr shareholders may be facing a hefty capital gains tax bill that will come due as soon as the transaction is complete.
If the deal had been structured as a stock transaction, on the other hand, it might have been structured to defer the capital gains tax for those shareholders until they actually sell their stock to Yahoo! There are a number of methods, such as 1031 exchanges, Section 368 tax-free reorganizations, and or 338(h)(10) stock purchase elections, that might also be effective in mitigating the tax burden.
An all-cash deal also presents challenges for Yahoo! in that it could affect the incentives for Tumblr’s founder and senior management going forward. In a tax-free reorganization, for example, they would generally be compensated in Yahoo! stock, which automatically creates an incentive for Tumblr’s leadership to build value for Yahoo! Without stock, a different incentive plan is needed.
According to The New York Times’ DealBook blog, Yahoo! may not need to worry about incentivizing Tumblr’s leadership, however, as it plans to continue to run the blog service as a separate company with the same group of executives. That may leave the existing incentives for success in place.
In this particular case, we don’t have enough information to determine why Yahoo! and Tumblr structured the acquisition as an all-cash deal. Well-considered tax planning, however, is essential for any business considering a merger or acquisition, stock sale, or major asset sale. Anticipating and minimizing transactional taxes, including business transfer taxes and business succession taxes, can help ensure that companies garner all potential benefits of the deal.
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Growing Client Accounts With Tablet Apps (TBC)
“We Need An App!” This has been a consistent cry from partners in law firms around the world over the past few years. Unfortunately those who were tasked with this jumped a little too quickly without understanding their audience and the purpose of an app. In most cases, apps were built that essentially reflected content that could be found on the corporate website and were launched in haste – without being updated regularly or adding any value. These apps were not ‘sticky’ and gave the target audience little reason to return. The results of these experiments were costly apps that failed to truly connect with the targeted audience. As business development tools these were a fail, but at least these initiatives were a start in exploring how firms can adopt mobile as tool and channel. But how can law firms harness the power of the tablet?
The growth in tablet technology for the enterprise is truly explosive. Research by digital ad agency Vertic, predicts enterprise tablet adoption will grow by almost 50% per year and by 2015 mobile app development projects will outnumber native PC projects by a ratio of 4-to-1! These are facts that can’t be ignored by professional services firms and mobile is now well and truly on the agenda. However, most firms’ initial mobile strategies have been focused on client adoption, when the focus should be business adoption. Your most captive and receptive audience is your own workforce, let’s equip them with mobile tools that empower them to engage effectively with clients and generate new revenue opportunities.
Law firms produce substantial amounts of marketing and business development collateral but much of it is inaccessible, out of date or not in easily consumed formats. Tablet technology is rapidly changing how proprietary marketing and business development content is shared and leveraged to internal and external audiences.
Forward thinking firms have recognized this and are placing mobile high on the agenda and revising their strategies, or formulating one if they haven’t before. One part of the puzzle is the device strategy – how to secure, deploy and manage smartphones and tablets (both personal and firm-owned devices). The other piece is the application strategy – deciding on the enterprise apps that are most relevant for achieving the firm’s objectives and what mobile platforms these need to cater for (iOS, Blackberry, Android etc.). IT teams will push for firms to adopt enterprise apps that mobilize internal processes and improving efficiencies. However, there should be a higher priority whilst the competitive window is open, which is using enterprise tablet apps as tools for growing client accounts and acquiring new clients. We are calling this ‘business development enablement’.
In the age of the internet, most firm-wide marketing collateral is stored as electronic files in difficult to access and immobilized intranets or file storage systems. These are hardly encouraging for an attorney who is trying to prepare and rally their team for a big business development meeting with a key client. If they are out of the office it is even more difficult to access and share the right information. Many still use their own personal decks or carry with them the printed materials that the firm has produced – which is often out of date the day. Even though many partners prefer print, they are high cost and low usage, or ‘low viewage’ to be more accurate. Your target audiences are now much more likely to consume content on a mobile device than print. Your firm’s business development and marketing content – brochures, case studies, client briefings, press releases and deal memorandums– must be mobilized. Fee earners need to be able to access collateral quickly and easily on the devices where they are both consuming and sharing marketing content.
So why should your firm deploy an enterprise tablet apps for marketing and business development enablement?
Fee earners can access knowledge outside their area of expertise
Most fee earners are experts in a particular area of the law and may not be able to confidently convey the firm’s experience or track record in other areas, where potential opportunities may arise within an existing client. A tablet app empowers a fee earner to quickly access relevant collateral with a couple of swipes, so opportunities are captured at the time they arise.
Have everyone singing from the same hymn sheet
Using a centrally managed and distributed app ensures the whole client facing organization is using consistent and up-to-date collateral that has been made available by marketing, business development and knowledge teams.
A Branded Experience
Your firm-branded app will produce a positive and focused brand experience for both user and client. An app is a concentrated place with no distractions and also brings stagnant collateral to life by giving it an extra dimension that cannot be achieved using printed or static web pages.
Access marketing or business development collateral, anywhere, any time
An enterprise app for business development can store and present any digital asset that the firm has produced. Documents, presentations, video and audio can all be consumed, shared and even presented over a coffee or on a screen, in a client-facing meeting. A tablet enterprise app with a well design user experiences also requires little or no training for fee earners and business development teams, meaning user adoption is rapid.
Collaboration around clients, matters and opportunities
Apps can be rolled out to multiple devices across the firm, allowing fee earners and business development teams to all share and collaborate around client meetings and opportunities.
Gain a competitive advantage through innovation
Impression is everything. Using the latest mobile technology and software can enhance the face-to-face engagement with a client or prospect and subsequently improves the perception of, not just the individual expert, but the firm itself. Even though a firm’s reputation may rely on history, using a tablet and enterprise app to market, demonstrates that a firm is progressive, innovative and employing technology to deliver results.
Are you behind or ahead?
There is a vast contrast between where law firm are with their mobile strategy. One major AMLAW 100 firm purchased iPads for its entire 1,000 strong workforce back in 2011. This was bold move back then but this was real foresight, as the firm now understands the usage of these devices for the enterprise, and not to just be more efficient, but to consume and share information and knowledge both internally and externally. For those of you who are reading this and are a little concerned that your firm is behind in its pursuit of mobile, consider this – I met with a senior marketing executive of a Global AMLaw20 firm in the latter half of 2012. When I asked if they were considering their mobile strategy, I was told in no uncertain terms “that we are at least three years away from looking into mobile”.
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Twitter: Little Statements with Big Consequences for Companies
Twitter is under attack. In recent months, accounts belonging to media giants CBS, BBC, and NPR have all been temporarily taken over by hackers. The Associated Press is the most recent victim. On April 23, 2013, a false statement about explosions at the White House and the President being injured sent shock waves through the Twitter-sphere. The real surprise is the effect the single tweet had in the real world: the Standard & Poor’s 500 Index dropped so sharply moments after the frightening tweet that $136 billion in market value was wiped out. While the hacking of these massive media outlets make headlines, everyday businesses are not safe from the threat, either. In February of this year, a hacker changed the @BurgerKing feed to resemble that of McDonald’s, putting the McDonald’s logo in place of Burger King’s. The hackers posted offensive claims about company employees and practices. If accounts belonging to well-established companies like these are vulnerable, so is yours. If a tweet can have a profound impact on the nation’s stock market, imagine what an ill-contrived tweet could do to your business.
Business owners may have the knee-jerk reaction to delete their Twitter account, but despite the recent blemishes to its security, Twitter remains one of the most important social media sites out there. Just recently, the Securities Exchange Commission made clear that companies could use social media like Twitter when announcing key information in compliance with Regulation Fair Disclosure. Twitter is not just a marketing or PR tool—Twitter is business. And you should never turn your back on existing business. So instead of hanging up your hashtags, consider some steps that can make your Twitter account safer.
Limit Access
Not every employee should have access to the company’s Twitter account. In fact, hardly anyone should, except a few designated employees like the marketing director or business owner. While those with access may never do anything harmful to the account, the more people who have the log-in information, the more likely it is to fall into the wrong hands.
Create a strong password
I know, you already have too many passwords to remember. But a creative password is your best defense against someone seeking to break into your account. Employers should, at minimum, have unique passwords for their most commonly used media sites; please do not use the same word for your Facebook, LinkedIn, and Twitter account. Once a hacker figures it out, they have control of your entire social media presence.
When creating a password, avoid using anything that would be too common. “Password,” “1234,” or the business’s name should never be the only thing standing between you and a hacker. The longer the password, the better. Use a mix of uppercase and lowercase letters, numbers, and symbols.
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Recent Social Media Developments Impacting Employers
NLRB: Latest Decisions Addressing Social Media Policies and Activities
Within the past several months, the National Labor Relations Board (“NLRB“) has issued four precedent-setting opinions addressing the legality of an employer’s use of social media as a basis for taking adverse employment action. These decisions apply to both unionized and non-unionized workforces.
The key issue in each of these cases was whether the employer’s actions compromised the right of employees to engage in “protected concerted activities” for the purpose of their “mutual aid and protection.” However, as noted in a prior alert, recent federal case law could void all NLRB decisions dating back to January 4, 2012 (including those discussed below). Until there is clarity the NLRB decisions continue to be significant in shaping social media use, policy and practice.
On April 19, 2013, the NLRB, in Design Technology Group, LLC, found that an employee’s Facebook posts that criticized a manager’s handling of employee concerns were a “classic connected protected activity” under the National Labor Relations Act (“the Act”).
In that case, workers had approached their manager about closing the store they worked in at 7 PM instead of 8 PM, because of safety concerns. The manager advised that she would discuss those concerns with corporate officials, but the issue was never resolved. Subsequently, two employees posted messages on Facebook that were critical of how the manager handled that issue. Another employee showed the manager those posts and six days later, both employees who made the critical Facebook posts were fired by the manager.
The NLRB determined that the Facebook posts were part of the employees’ efforts to convince their employer to close the store earlier in the evening, based on their concerns about working late in an unsafe neighborhood. The NLRB found that those posts were protected under the Act and that the employees’ terminations constituted unfair labor practices.
Design Technology comes on the heels of three other NLRB social media rulings issued late last year.
In Hispanic United of Buffalo (December 14, 2012), the NLRB held that the termination of five employees for violating an employer’s policies on the basis of their social media activity was unlawful. In that case, five employees posted comments on Facebook that were critical of a co-worker who was scheduled to meet with and complain to management about their work performance. The employer terminated the five employees for “bullying and harassing” the co-worker in violation of its policies.
Hispanics United of Buffalo applied settled NLRB law regarding oral communications among co-workers to the social media context. Under NLRB precedent, employees’ comments regarding the terms and conditions of their employment are protected if their comments are “concerted” — meaning they are “‘engaged in, with or on the authority of other employees,” not only by “one employee on behalf of himself.” Finding the actions of these employees to be protected, the NLRB set a relatively low threshold for interpreting social media activity as protected concerted activity under the Act.
The Hispanics United decision is especially controversial because it may conflict with an employer’s competing obligation under federal and state discrimination laws to prevent workplace harassment. And, the decision may ultimately be in conflict with workplace anti-bullying laws in those states where such legislation is being actively considered. In Karl Knauz Motors, Inc. (September 28, 2012), the NLRB ordered another employer to rescind its social media policy. In that case, the employer terminated the employee for multiple reasons, including violation of the employer’s “Courtesy” rule requiring employees to be “courteous, polite and friendly” to customers, vendors, suppliers and fellow employees and not to use “language which injures the image or reputation of the Dealership.”
The NLRB held that the “Courtesy” rule violated the NLRA because employees could “reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language’ which injures the image or reputation of the Dealership as encompassing Section 7 activity.” However, the NLRB upheld the employee’s termination, finding it was not motivated by protected concerted activity, but rather was solely based on the employee’s Facebook postings that did not relate to the terms and conditions of his or any other employee’s employment. The NLRB did not address whether other posts would be protected by the Act.
In Costco Wholesale Corp. (September 7, 2012), the NLRB ruled that an employer’s overbroad social media policy violated the National Labor Relations Act because it prohibited employees from posting statements “that damage the Company, defame any individual or damage any person’s reputation or violate the policies outlined in the Costco Employee Agreement.” The NLRB ordered Costco to rescind the policy based on its finding that the policy inhibited employees from engaging in protected concerted activity.
NJ Legislative Update: Proposed Law Seeks to Protect Employee and Job Applicant Passwords
A-2878, a bill that prohibits employers from requiring, or requesting, a current or prospective employee to reveal, as a condition of employment, his or her user name, password or other means of accessing the employee’s personal social media account, has passed both houses of the NJ Legislature and is awaiting further action by Governor Chris Christie. While it is not clear as of this writing whether Governor Christie will sign or veto this bill, the implications to employers of this potential new law are far reaching.
If enacted, this bill would prohibit employers from even asking an employee or prospective employee whether he or she has a profile on a social media site. In addition, the bill would prohibit employers from requiring prospective employees to waive or limit any protection granted to them under the law as a condition of applying for or receiving an offer of employment. It provides for a $1,000 civil penalty for the law’s first violation and $2,500 for each subsequent violation. If Governor Christie signs this bill into law, New Jersey would join other states that have enacted legislation preventing employers from requesting social media access information, including Arkansas, California, Delaware, Illinois, and Michigan, though it would be the first state to prevent employers from inquiring if employees or applicants have a social media account.
Notably, the bill does not prevent employers from performing their own online search to determine if a prospective or current employee is on a social media site. Accordingly, if a social media account is publically available, an employer would not run afoul of this proposed law by independently viewing an employee’s or prospective employee’s social media account. This type of activity could have other potential pitfalls associated with it however, such as learning protected class information about applicants.
We will continue to monitor the signing status of this bill.
What These Decisions and the Prospective NJ Statute Mean to Employers
In light of the foregoing, we recommend the following:
- Employers should review and consider revising social media polices and hiring practices to address the NLRB decisions, the new NJ legislation, if enacted, and EEO issues associated with searches on applicants.
- With respect to policies, employers should ensure that prohibitions placed on employees’ communications do not prohibit employees’ rights to engage in protected concerted activity.
- Employers should continue to exercise caution when disciplining or terminating any employee based on his/her social media activities and should also consider training its managers in this area so that they do not inadvertently run afoul of these laws.
- It is important to consult with counsel to consider whether an employee’s comments or posts would be deemed to be protected concerted activity under the Act before any disciplinary action is taken by the employer based on those comments or posts.
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