Tag: Social Media

Authority Marketing and Thought Leadership for Law Firms with John McDougall of McDougall Interactive [PODCAST]

Listen as we speak with John McDougall, McDougall Interactive, on authority marketing and thought leadership for law firms.

Nicole Minnis, National Law Review, Publications Manager, Authority Marketing, Thought Leadership, Podcast

Nicole Minnis:  Hi everyone. I’m Nicole Minnis with the National Law Review. I’m here today with John McDougall, the President of McDougall Interactive and author of legalmarketingreview.com. Today, we’re going to be talking about authority marketing and thought leadership for law firms.

Welcome, John.

John McDougall, CEO McDougall Interactive, Authority Marketing, Thought Leadership

John McDougall:  Welcome. Thanks for having me.

Nicole:  Thank you. Do you want to go ahead and get started with a little bit of background about McDougall Interactive and what your team is doing?

John:  McDougall Interactive is in Danvers, Massachusetts. I started in ’95 at my father’s ad agency doing Internet Marketing. I was actually a media planner before that in ’94 at the agency.

Ever since ’95, I’ve been doing all digital marketing, and now we work with a lot of law firms in different areas, both business to consumer and B2B.

Nicole:  It sounds like you have a lot of wonderful expertise that you can draw from while we’re talking today, so I’m looking forward to getting a little bit of insight myself.

John, tell me, what is authority marketing and why is it important to law firms?

John:  Authority marketing isn’t a really popular term yet and we’re trying to change that, because thought leadership is quite well known and people, in particular law firms, like to build up their reputation as leaders in certain practice areas by blogging on certain topics.

Authority marketing is taking that idea of building up your thought leadership in a systematic way, so that you can eventually turn your blog and your content into ebooks that become a printed book. Then as an author you get more media engagements, more speaking engagements. It all ties together in a way that also Google will appreciate.

That’s one of the real reasons, as an SEO company, again back from ’95, when we were saying “content is king.” Even in ’95, we used to say that.

We’ve been trying for all these years to get our customers really on board with building up content. It’s often quite hard to do that. What we realized is sometimes people are thought leaders and experts but they don’t have time to write.

Sometimes we do interviews to get their content out there, but the idea is that Google is going to pick up on that. The more you blog and have good content, your SEO rankings will go significantly up.

Authority marketing has good things about just your offline marketing and thought leadership, but it’s really good for Google Organic SEO.

Nicole:  Do you recommend that lawyers use more news story content type things, or would they write on evergreen topics, like the estate planning of a $20 million estate? Do you think it’s more of a mix, or that they should focus on one or the other?

John:  It’s probably a mix, but what we have seen when people do just news content is that it’s a little maybe boring or flat. Because if you’re just regurgitating news that other people are all talking about, there is only so much thought leadership in that.

Certainly, if there is a breaking issue, like for myself when Google Penguin happens, and different Google updates, I need to be leading the charge and blogging about those topics as they’re happening, to be a thought leader.

It’s not that news is a bad thing, but we have seen some people so overly focused on just news content that it falls short of answering the customer’s questions. So that evergreen content that you talk about and the struggles that people have with various issues — we can find those struggles by looking at the Google keyword tool, and looking at the monthly search volume of the way people are searching.

We can use social media listening tools to figure in your topically related communities what are people concerned with, what are they sharing on LinkedIn groups and Google+ communities. If you can take that content, and as you said, make more evergreen content that’s going to be heavily searched on, then it’s going to prove the test of time and keep ranking.

Google is going to rank that a little better in a long term trajectory, because the news isn’t just over with, this is content that Google will keep bringing back into the search engines, so that keeps a steady stream of visitors to your site year round, as opposed to just news content.

So a bit of a mix is good, but we’re a bit more fans of the evergreen and thought leader content.

Nicole:  That makes sense, and just to try to get in front of the readers, with the news worthy things, but also searching for the useful content is what people are normally doing.

Is there a magic number for how often you compile blog posts to create an ebook? Is there a magic number, or a magic date or time? Do you do it four times a year? Or, is there not really a formula for what works for compiling everything?

John:  In terms of content volume, once a week is sort of industry standard, that if you’re not blogging once a week, it’s a little bit weak. It really goes up from there to — it really depends on the organization. Mashable is doing maybe hundreds a day of blog posts, or certainly a hundred ish. [laughs] I don’t know the exact number, but I was just talking with one of my guys here who was quoting their editorial calendar and how much they’re producing.

The sites that have the most traffic on the Internet tend to be the sites that have the most content. There is not an exact correlation, because of content quality. If you pumped out 10,000 articles a year, and your quality was crap, then a site with 300 articles might outrank you, because Google is aware of the quality.

Again, I think a blog post a week is a good healthy start. Two, three a week is a little more serious. A blog a day, you’re going to start to get more significant SEO traffic.

Then you can turn that content — maybe at least a couple of times a year, if you have an ebook — that’s great. Hub Spot says that if you have 30 ebooks or more, you’ll have — I forget, I think it’s a 7x increase in leads.

It does depend on your industry, et cetera, but a couple of ebooks a year at least to have a top of the funnel call-to-action. A blog post a week at minimum. Maybe a video a month.

Then, certain times of day — that’s all going to be dependent on your audience. If you’re targeting kids that get home from school at two or three in the afternoon, then you might want to publish just before that, that type of thing, versus a different industry that’s targeting night owls. The time of day is probably depending on your actual audience.

Nicole:  We’re doing this right now, but tell me, John, how can lawyers use podcasting to generate more leads and improve their SEO?

John:  One of the keys to SEO as we’ve discussed is having more content, but a lot of people aren’t naturally writers. Maybe it’s somewhere between 10 percent of the population.

I was actually at the HubSpot Inbound conference this fall. They had the stats on that. I don’t remember exactly what they were, but basically not everyone is a writer. That’s why blogs often fail, because people hear someone like myself say, “Hey, you’ve got to blog every week.”

The people on the staff say, “Geez, we don’t really have any writers here.” But you think they would be able to publish content because they’re thought leaders. What we realized is there are a lot of experts at law firms that might not be comfortable writing, but they love to talk. Or certainly a fair amount of attorneys like to chat, and they’re really engaging and full of ideas and energy.

We like to bottle that up by interviewing them. Because you ask them to write, they’re busy, and they’re concerned potentially with the billable hour, of course. We all have to make money.

It’s so easy to get a great piece of content in even 15 minutes by asking three questions. Every three questions become about 1,500 to 1,800 words. So every question may be around 500 words if you answer fairly lengthily. So you’re able to, in a 15 minute conversation, get a very long blog post. The average blog post is maybe 500 to 700 words or so.

When people are thinking to write one, that’s what they shoot for. But you can get, again, 1,500 to 1,800 words in 15 minutes. That’s a lot of content. Now what you’re going to do is you’re going to transcribe the text. After this podcast is over, we use CastingWords in New York and some other places. You pay $1 to $1.50 a minute.

You put that text up on the blog post under — we use sound cloud, but that’s just one player. You put the audio file that you can click and listen to the podcast in the blog post itself, then under it, you put the transcribed text. Because you’re picking keywords as the topics before you write the titles of the post and pick the interview questions, it’s a very search-engine-friendly strategy.

You just title the name of the post in WordPress, or whatever you’re using, and that becomes the URL, then you can put that search-engine-keyword-friendly title in the heading, in the title tag. Google is going to read all that nice rich text of Q&A content, and it’s going to pop up in the search engines.

Now, you wouldn’t want to only use podcasting for your blog necessarily. We do that with a lot of our customers. We also like them to either pay us to write or for them to write a little bit of regular prose as well, but it’s an awesome way to get regular, consistent content.

Again, say once a week, if you do an hour of podcasting a month in four 15 minute interviews with three questions each, you’re going to have an easily-generated one blog post a week.

Nicole:  How about making the leap to video? How important is a video strategy for SEO?

John:  YouTube is the second largest search engine in the world. There was a guy from — it was Distilled, recently that said, “If you don’t have a video and YouTube strategy in 2014, you’re just simply not doing SEO.” [laughs] It’s that important.

Google, they own YouTube. Again, it’s the second largest search engine in the world above Bing, Yahoo, et cetera. Yet, you still have to pick keywords for your YouTube videos.

We do a similar routine with the podcasting where we ask our attorneys to answer basically one question. “What to do if you get pulled over for drunk driving”, for a DUI lawyer, or something along those lines.

When they answer that one question, and that question is something people actually search for, because we’re looking again at the keyword research and the forum social listening to see how people — what are the common questions.

Because we know that that’s an actively looked-for topic, then you’re going to pop up both in YouTube if you upload the video with the right keywords in the title, in the description, et cetera. You can also put in the transcript into the close caption area.

We do the same routine with the podcasting as with the video. We put the YouTube video up in the blog post using the embed code from YouTube. The video shows up, and you can play it right in the blog post, but under that, you put in the transcription of the conversation. Usually those are like one or two minutes long. Maybe three minutes.

You don’t want to kill people with “too long”. Those are going to be maybe 300 words or so. But again, you’re popping up now both in YouTube and your blog because you have the YouTube video in a blog post. You’re getting that extended benefit beyond YouTube of your blog’s ability to rank for the conversation that’s in the video.

Nicole:  Those are all really great thoughts. I’m actually personally excited about implementing a podcasting and video strategy for our company.

Thank you so much, John, for joining us today, and talking to us about authority marketing and thought leadership for law firms.

John:  Absolutely. Great talking to you.

Nicole:  It’s great talking to you, too. I will see you on our next post when we talk about content marketing for law firms another time. Thank you so much.

John:  Sounds good.

ARTICLE BY

Nicole Cudiamat Minnis
OF
The National Law Review / The National Law Forum LLC

The Year in Social Media: Four Big Developments from 2014

Barnes Thornburg

As social networking has become entrenched as a tool for doing business and not just a pastime of our social lives, employers, government agencies, and even academia have taken big steps in 2014 to define how social media can and cannot, or should and should not, be used. Below is a summary of some of the big developments in social media in the workplace this year.

The EEOC Turns Its Attention to Social Media

The Equal Employment Opportunity Commission has turned its attention toward social networking, meeting in March to gather information about social media use in the workplace. To no surprise, the EEOC recognized that although using social media sites such as LinkedIn could be a “valuable tool” for identifying employment candidates, relying on personal information found on social networks, such as age, race, gender, or ethnicity, to make employment decisions is prohibited.

More controversially, the EEOC expressed concern that employers’ efforts to access so-called “private” social media communications in the discovery phase of discrimination lawsuits might have a “chilling effect” on employees filing discrimination cases. However, it is unclear how the EEOC might prevent employers from getting this information if it is relevant to a plaintiff’s claims. It remains to be seen what steps the EEOC might take to address this “chilling effect.”

 The NLRB Continues to Refine Its Position on Social Media Policies

The National Labor Relations Board has spent the past few years attacking social media policies as overbroad, but perhaps a shift in that policy is at hand. This summer, an NLRB administrative law judge upheld a social media policy that discouraged employees from posting information on social networks about the company or their jobs that might create morale problems. The ALJ held that the policy did not prohibit job-related posts, but merely called on employees to be civil in their social media posts to avoid morale problems. The ALJ’s finding is at odds with recent NLRB decisions, which have gone much further to limit any policies that might affect employees’ rights under the National Labor Relations Act. While it is unclear whether this holding is an outlier or a shift in the NLRB’s approach, it brings with it some hope that the NLRB may be moving toward a more pro-employer stance.

States Continue to Limit Employers’ Access to Employees’ Social Media Accounts

State governments also are getting involved with social media regulation. In April, Wisconsin became the newest state to pass legislation aimed at protecting employees’ social media accounts, passing the Social Media Protection Act. The Act bars employers, schools, and landlords from requiring their employees, students, and tenants to produce their social media passwords. Significantly, the Act does not ban them from viewing social media posts that are publicly accessible.

Wisconsin was not alone in enacting legislation to protect social media passwords this year, as Louisiana, Maine, New Hampshire, Oklahoma, Rhode Island and Tennessee enacted similar laws during 2014 and 12 other states did so in previous years. While not every state has passed such legislation, it is clear that state governments increasingly will not tolerate employers asking employees or applicants for access to their private social networking accounts. Employers should be mindful of their state laws before seeking social media information that might be protected.

Academia is Drawing Its Own Conclusions Regarding Social Media in the Workplace

Federal and state governments are not the only institutions weighing the implications of social media in the workplace. University researchers also are studying employers’ stances on social media – a North Carolina State University study concluded that applicants tend to have a lower opinion of employers that looked at their social media profiles before making a hiring decision, and a Carnegie Mellon University study concluded that employers risked claims of discrimination by reviewing applicants’ social media profiles, based on employers being more likely to screen out candidates based on their personal information such as ethnicity.

While these studies weigh against employers searching applicants’ social media before making hiring decisions, there is certainly logic to the contrary, as employers are entitled to view publicly-accessible information about their applicants, and thorough employers will want to learn as much as they can to do their due diligence in making important hiring decisions.

Laws, best practices, and public opinion regarding social media in the workplace will continue to evolve in 2015. Employers would be wise to look at the most recent developments before making any major decisions affecting their social media policies and practices.

ARTICLE BY

Douglas M. Oldham
OF
Barnes & Thornburg LLP

Social Media Marketing for Lawyers: What It Can Do for You, How to Do It Right

The Rainmaker Institute

Many attorneys I talk with want to know if social media will deliver real value for the investment in time and effort that it takes to develop and implement a social media marketing program.

Social Media Marketing

Here is what I tell them:

Social media will help you build trust, but it will not make a “bad” reputation better. Social media is a meritocracy – if you’re good, people will know it. Conversely, a bad experience will also get talked about. Building trust is crucial for attorneys, and social media helps you build trust by providing a robust platform for sharing your particular insights and knowledge. Once people trust that, they will use you and recommend you to others.

Social media will get you leads, but it will not turn them into paying clients. People who follow you on Twitter, are a fan of you on Facebook or interact with you in any way on a social network have indicated an interest in what you have to say. These are leads. To capitalize on them and turn them into paying clients, however, requires effort on your part in following up.

Social media will give you visibility, but it will not replace a good client experience. Social media is a 365/24/7 world, allowing you to engage with prospects at any time, and they with you. You must be vigilant about responding to posts and questions the same way you would in responding to a prospect that calls or emails you. Every point of contact is an opportunity to make a great impression.

Social media is the fastest way to build your sphere of influence, but it won’t happen overnight. Your sphere of influence is defined as how many people know (1) who you are, (2) who you help, and (3) why you are different.  If you only have 20 people who know enough about you to send you the right referrals, then you are severely limited in how much you will be able to grow your practice.   Social media is a long-term play, and you need to commit to spending the time and money (either yours or hiring someone else) to achieve success.

ARTICLE BY

Stephen Fairley
OF
The Rainmaker Institute

NLRB Shows Some Restraint in its Protection of Employee Social Media Communications: Employee Termination Arising From “Egregious” and “Insubordinate” Facebook Posts Was Legal Under the NLRA

Mintz Levin Law Firm

In the wake of the NLRB’s aggressive crackdown on social media policies, many employers have asked: “Is there any limit to what employees can post on social media about their employers?”  It appears that there is.  Just last week, a former employee of the Richmond District Neighborhood Teen Center in San Francisco learned this the hard way when the Board dismissed his complaint that the Center violated Section 8(a)(1) of the National Labor Relations Act after it pulled a rehire offer after it discovered that he particpated in an inappropriate Facebook exchange.

During the 2011-2012 school year, Ian Callaghan and Kenya Moore both worked for the Center’s afterschool program—Callaghan as a teen activity leader and Moore as the teen center program leader.  In May 2012, the Center held a staff meeting during which it solicited and received both positive and negative feedback from its staff, including Callaghan and Moore.  In July 2012, Callaghan and Moore received letters inviting them to return to the Center for the 2012-2013 school year; this time both as activity leaders.

The following month, Callaghan and Moore communicated over Facebook about (i) refusing to obtain permission before organizing youth activities (“ordering sh*t, having crazy events at the Beacon all the time.  I don’t want to ask permission…”; “Let’s do some cool sh*t and let them figure out the money”; “field trips all the time to wherever the f#@! we want!”), (ii) disregarding specific school district rules (“play music loud”; “teach the kids how to graffiti up the walls…”), (iii) undermining leadership (“we’ll take advantage”), (iv) neglecting their duties (“I ain’t go[]never be there”), and (v) jeopardizing the safety of participating youth and the program overall (“they start loosn kids I aint helpin”; “Let’s f#@! it up”).  When the Center’s administration became aware of the postings, it revoked the offers to rehire, and Callaghan filed a charge with the Board.

Under Section 7 of the Act, employees have the right to engage in concerted activities for their mutual aid and protection, including complaining to one another about the terms and conditions of their employment.  In that vein, an employer may not take adverse action against employees for exercising their Section 7 rights without violating Section 8(a)(1) of the Act.  That said, employees can take it too far and lose the protection of Section 7 when their conduct is particularly egregious or of such a character as to render the employees unfit for further service.

Here, although Callaghan and Moore previously had engaged in protected activity during the May 2012 staff meeting when they offered negative feedback about the Center, and although neither Callaghan nor Moore had ever engaged in any acts of insubordination, the Board held that they lost the Act’s protection because “[t]he magnitude and detail of insubordinate acts advocated in the [Facebook] posts reasonably gave [the Center] concern that Callaghan and Moore would act on their plans, a risk a reasonable employer would refuse to take.”

Several years ago, the Richmond District Neighborhood Center decision may have been a foregone conclusion.  But in light of the current Board’s aggressive approach to Section 7 protections, the decision provides employers with reassurance that Section 7 has retained at least some outer bounds.  The decision provides some guidance for defining “insubordination” in social media policies, for example, to include communications pervaded by detailed plans to jeopardize the employer’s very existence, violate legally enforceable employer policies, or neglect job duties.

For a full discussion of the Board’s recent approach to social media policies, see George Patterson’s September 3, 2014 posting “NLRB Continues Aggressive Crackdown on Social Media Polices.”

ARTICLE BY

Erin Cornell Horton
OF
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Uber’s Decision To “Deactivate” Driver Over Retweet of Article Goes Viral in Minutes

Allen Matkins Law Firm

It all started with a retweet. A recent story regarding the “deactivation” and subsequent reinstatement of an Uber driver in Albuquerque is a useful reminder for employers that, given the widespread use by employees of social media, employment decisions should not only be well thought out, but also should take into account potential negative publicity.

During a period while he was on hiatus from driving for Uber, Christopher Ortiz merely retweeted an article referenced as “Driving for Uber, not much safer than driving a taxi,” without commenting on the article. When he sought to resume driving for Uber a couple of months later, Ortiz received an email from Uber stating that his driver account had been “permanently deactivated due to hateful statements regarding Uber through social media.” The e-mail referenced the title of the article that Ortiz had retweeted. Ortiz immediately tweeted a screenshot of Uber’s email, and the story was picked up by websites such as Forbes and BuzzFeed.

Twitter Feed for Christopher J. Ortiz

Within hours, Uber reversed its decision and reactivated Ortiz’s driver account. Ortiz then tweeted a screenshot of Uber’s message reinstating him, which subsequently was retweeted numerous times.

In this situation, each of Uber’s communications with Ortiz was made public and broadcast within seconds of its transmission to Ortiz. It took only minutes for Uber’s termination decision to get attention from national media outlets. The fact that information regarding employers’ hiring and firing decisions can become subject to public scrutiny at such a rapid pace should serve as a reminder to employers to carefully assess how they approach these decisions and how they react to the decisions’ aftermath. For example, retracting an employment decision, particularly if it is publicized, could embolden other employees to publicize negative employment decisions affecting them in the hope those decisions too will be retracted.

As noted at the outset, employers should contemplate, as part of their decision-making process, that any employment decisions they make, and particularly those they may e-mail to their employees, potentially could be broadcast publicly and be subject to the court of public opinion through various forms of social media. As demonstrated by this incident, once a story gains traction on social media, it is very difficult, if not impossible, to control the ramifications.

ARTICLE BY

Alexander Nestor
Nisha Verma
OF
Allen Matkins Leck Gamble Mallory & Natsis LLP

California Class Action Suit Alleges LinkedIn Violated Fair Credit Reporting Act (FCRA) By Providing Employers With Reference Reports

Allen Matkins Law Firm

Another interesting case filed in California recently highlights the myriad risks employers face when using social media as part of their hiring process.

A class action lawsuit was filed in the Central District of California against LinkedIn based on allegations that thereference reports LinkedIn generates for premium subscribers, including many employers, violate the Fair Credit Reporting Act(“FCRA”). According to the plaintiffs in Sweet, et. al. v. LinkedIn Corporation, an employer who is a premium subscriber can generate a report containing the names, locations, employment areas, current employers, and current positions of all persons in a user’s network who may have worked with a job applicant and also contact the applicant’s “references.” An employer, according to the allegations, can run such a “reference report” on a job applicant without the applicant receiving any notification whatsoever. Thus, as the complaint alleges, “any potential employer can anonymously dig into the employment history of any LinkedIn member, and make hiring and firing decisions based upon the information they gather, without the knowledge of the member, and without any safeguards in place as to the accuracy of the information that the potential employer has obtained.” The complaint claims this activity potentially violates both the FCRA’s purposes, which include safeguards as to the accuracy, fairness, and privacy of the information that a potential employer obtains, and the FCRA’s customer notification requirements.

This latest lawsuit against LinkedIn serves as another example of the complex legal issues and risks that an employer faces when using social media to make recruiting and hiring decisions.

© 2010-2014 Allen Matkins Leck Gamble Mallory & Natsis LLP
ARTICLE BY

Alexander Nestor
Nisha Verma
OF
Allen Matkins Leck Gamble Mallory & Natsis LLP

Common Social Media Profile Picture Mistakes

Consultsweb Logo

How you present yourself on social media can either draw clients to you, or send them packing.

What’s the first thing you notice about someone’s social media account? Their profile picture. There are over 645 million active Twitter users, 829 active daily users on Facebook, and over 200 million users on Instagram. Profile pictures are the first thing any of these users will see when your account is searched or suggested on social platforms, so it is vital that your picture send the right message.

Do’s and Don’ts of social media profile pictures:

DON’T make yourself so far away that the person has to play a strategic game of “Where’s Waldo” just to identify you.

Where's Waldo

DON’T filter your picture so heavily so that the viewer can’t even imagine what the original looked like.

Filter 2

DON’T pose like you’re on the cover of a magazine. There is a time and a place for glamour shots, but your professional profile is not it.

Model

DON’T set your profile image as a picture of you and your spouse. Marriage is a beautiful thing, but this is your profile, not yours and your significant other’s.

Spouse

DON’T make your profile picture your firm’s logo. While it is important to gain exposure for your firm, your profile picture isn’t the ideal place to do so. A profile picture should personalize you as an attorney. You can, however, put something like a logo as your cover photo so that it is the background to your profile image.

Logo

DON’T leave your image as the default, such as the signature Twitter egg. Doing this will not only look impersonal, but also come off like you didn’t care enough to put in the effort to change the photo.

Twitter egg

DO follow these guidelines for profile pictures:

Profile Picture

  • Crop the picture so it is an up-close, professional shot of your face.

  • Make sure it is well-lit and that you’re looking directly at the camera.
  • Smile! This can showcase how personable you are and also be inviting to the people who see it.
  • Don’t have anything directly behind you; it is ideal to have professional head shots in front of a green screen.

  • Your profile picture needs to be large enough that it can be recognized without actually having to click on the image. Be mindful of general size requirements across social media networks.

ARTICLE BY

Samantha Hicks
OF
Consultwebs.com, Inc.

How to Build Trust Online by Being Human

The Rainmaker Institute

All you have to do is troll your own Facebook or LinkedIn account to know that there is LOTS of content online.

In fact, a recent post at Buffer.com noted that more content is published every day on Facebook than is found in every book published in human history!

Building Blocks with Trust

So how do you stand out from that enormous crowd and earn the trust you need to succeed with your social media marketing program?  Buffer provides these tips:

Use personal pronouns.  Using personal pronouns in your posts — I, we, you, me, etc. — and being more conversational elicits empathy from an audience, getting  you a better response.

Use simple words.  By using simple words, you can convey your idea in a way that people don’t have to think about before understanding it.  Big words and legalese will tend to alienate people, not draw them in.

Use stories.  Since the beginning of time, humans have communicated by telling stories and the propensity to listen to a story is ingrained in our DNA.  A Buffer study showed that adding a story to your blog post can increase readership by 300%.

Use contemporary culture references.  Weaving a pop culture reference or two into your post, especially if you’re able to add a celebrity name or two like Beyoncéor George Clooney (see how I did that?), helps boost readership and interest.

Use the Shaq Rule.  Shaquille O’Neal is a social media powerhouse, with a Twitter following of 8.5 million and 4.7 million Facebook fans.  His rule for posting is that 80% of his posts must be entertaining, 15% must be informative and only 5% should sell something.  People can sniff out a sales pitch online immediately, and just as quickly they are on to the next thing.

ARTICLE BY

Morgan Kennedy
OF
Covington & Burling LLP

Firings for Facebook Comments Unlawful, NLRB Rules

Jackson Lewis Law firm

An employer violated the National Labor Relations Act by discharging two employees because of their participation in a Facebook discussion about their employer’s State income tax withholding mistakes, by threatening employees with discharge for their Facebook activity, by questioning employees about that activity, and by informing employees they were being discharged because of their Facebook activity, the NLRB has ruled. The Board also ruled the employer’s Internet/Blogging policy violated the NLRA. Triple Play Sports Bar and Grille, 361 NLRB No. 31 (2014).

Facebook Posts

Triple Play employees Jillian Sanzone and Victor Spinella discovered they owed more in State income taxes on their earnings at the sports bar than expected. Sanzone discussed this at work with other employees, and some employees complained to the employer about the tax problem. The employees did not belong to a union. 

Sanzone, Spinella, and former employee Jamie LaFrance had Facebook accounts. On January 31, 2011, LaFrance posted the following “status update” to her Facebook page:

Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…[expletive deleted]!!!!

The following comments were posted to LaFrance’s page in response:

KEN DESANTIS (a Facebook “friend” of LaFrance’s and a customer): “You owe them money…that’s [expletive deleted] up.”

DANIELLE MARIE PARENT (Triple Play employee): “I [expletive deleted] OWE MONEY TOO!”

LAFRANCE: “The state. Not Triple Play. I would never give that place a penny of my money. Ralph [DelBuono] [expletive deleted] up the paperwork…as per usual.”

DESANTIS: “yeah I really dont go to that place anymore.”

LAFRANCE: “It’s all Ralph’s fault. He didn’t do the paperwork right. I’m calling the labor board to look into it bc he still owes me about 2000 in paychecks.”

At this point, Spinella selected the “Like” option under LaFrance’s initial status update. The discussion continued:

LAFRANCE: “We shouldn’t have to pay it. It’s every employee there that its happening to.”

DESANTIS: “you better get that money…thats [expletive deleted] if that is the case im sure he did it to other people too.” 

PARENT: “Let me know what the board say because I owe $323 and ive never owed.”

LAFRANCE: “I’m already getting my 2000 after writing to the labor board and them investigating but now I find out he [expletive deleted] up my taxes and I owe the state a bunch. Grrr.”

PARENT: “I mentioned it to him and he said that we should want to owe.”

LAFRANCE: “Hahahaha he’s such a shady little man. He prolly pocketed it all from all our paychecks. I’ve never owed a penny in my life till I worked for him. Thank goodness I got outta there.”

SANZONE: “I owe too. Such an [expletive deleted].”

PARENT: “yeah me neither, i told him we will be discussing it at the meeting.”

SARAH BAUMBACH (Triple Play employee): “I have never had to owe money at any jobs…i hope i wont have to at TP…probably will have to seeing as everyone else does!”

LAFRANCE: “Well discuss good bc I won’t be there to hear it. And let me know what his excuse is ;).”

JONATHAN FEELEY (a Facebook “friend” of LaFrance’s and customer): “And ther way to expensive.” 

Sanzone and Spinella Discharged

When Ralph DelBuono, the employer’s co-owner, learned about the Facebook discussion, he discharged Sanzone, telling her it was because of her Facebook comment. Spinella was terminated the next day, after being interrogated about the Facebook discussion, the meaning of his “Like” selection, the identity of the others in the conversation, and other issues. The other co-owner told Spinella that, because Spinella “liked” the disparaging and derogatory comments, Spinella was disloyal and it was “apparent” that Spinella wanted to work elsewhere. He told Spinella, “[Y]ou will be hearing from our lawyers.” Thereafter, the company’s attorney contacted Sanzone by letter, suggesting a possible defamation action. The lawyer also contacted LaFrance who, in response, deleted the entire Facebook conversation and posted a retraction. 

Sanzone and Spinella filed separate unfair labor practice charges against Triple Play, which the NLRB consolidated into one complaint. 

The employer did not dispute the employees’ Facebook activity was concerted and they had a protected right to engage in a Facebook discussion about the employer’s tax withholding calculations. The employer, however, contended it had not violated the NLRA because the plaintiffs had adopted LaFrance’s allegedly defamatory and disparaging comments, which were unprotected. The employer also asserted the Facebook posts were unprotected because they were made in a “public” forum, accessible to employees and customers, and they had undermined the co-owner’s authority in the workplace and adversely affected its public image.

Comments Protected

The Board disagreed. It determined the employees did not lose the Act’s protection to engage in concerted activity because of their comments in the Facebook discussion. Under its holding in Atlantic Steel, 245 NLRB 814 (1979), the NLRB explained, it must balance employee rights with the employer’s interest in maintaining order at its workplace, but Atlantic Steel dealt with workplace confrontations with the employer, which was not the scenario here. The employer’s reliance on that decision was therefore misplaced. In this case, the Board pointed out, the disputed conduct involved a social media discussion among offsite, off-dutyemployees, and two non-employees in which no manager or supervisor participated and where there was no direct confrontation with management. Further, the Board said, Sanzone’s “use of a single expletive” to describe her manager “in the course of a protected discussion on a social media website” did not “sufficiently implicate” the employer’s “legitimate interest in maintaining discipline and order in the workplace.”

The Board also rejected the employer’s argument that Sanzone’s comment was unprotected because it was a workplace confrontation that could be seen by customers DeSantis and Feeley. The NLRB noted they joined the discussion as LaFrance’s Facebook friends, on their own initiative and in the context of a social relationship with LaFrance outside of the workplace, not because they were the employer’s customers, and“[t]his off-duty indiscretion away from the [employer’s] premises did not disrupt any customer’s visit to the [employer].”

Neither did the Board see this conduct as disloyal or defamatory. While the Board agreed an employer has a legitimate interest in preventing the disparagement of its products or services and in protecting its reputation from defamation, against which NLRA Section 7 rights are to be balanced, that interest was not pr
esent here so as to overcome the employees’ statutory protection. It rejected the employer’s contention that Sanzone’s comment and Spinella’s “like” were disloyal and unprotected. The purpose of the employees’ communications was to seek and provide mutual support to encourage the employer to address problems in the terms or conditions of employment, not to disparage its product or services or to undermine its reputation, the NLRB said. The discussion clearly showed a labor dispute existed and the employees’ participation was not directed to the general public (they were more comparable to conversations that can be overheard by a customer). Further, the Board said the comments were not “so disloyal . . . as to lose the Act’s protection” because they did not even mention the employer’s products.

The Board also rejected the contention that the employees’ comments were unprotected because they were defamatory. According to the agency, Triple Play had not met its burden to establish the comments were made with knowledge of their falsity or with reckless disregard for their truth or falsity. In addition, it said that Sanzone’s use of an expletive to describe a co-owner in connection with the asserted tax-withholding errors “cannot reasonably be read as a statement of fact; rather, Sanzone was merely (profanely) voicing a negative personal opinion of [the co-owner].”

“Like” Protected

The Board also decided that Spinella’s use of Facebook’s “like” option was protected. It expressed agreement only with the comment it immediately followed (LaFrance’s original post), the Board found, not with LaFrance’s other comments. Accordingly, said the Board, Spinella’s activity was protected by the Act, and the employer’s adverse action was unlawful. (See our blog post, Employee’s Facebook ‘Like’ is Part of Concerted Activity: NLRB.)

Internet/Blogging Policy Unlawful

The Board faulted the employer’s internet/blogging policy, as well. It found that, since employees would reasonably construe the employer’s “Internet/Blogging” policy to prohibit the type of protected Facebook post that led to the unlawful discharges, it was illegal.

The policy stated:

The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, email, text message, or other forms of communication extend to employees revealing confidential and proprietary information about the company, or engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company. In the event state or federal law precludes this policy, then it is of no force or effect.

Employees could reasonably interpret the policy as proscribing discussions about terms and conditions deemed “inappropriate” by the employer, because “‘inappropriate’ [is] ‘sufficiently imprecise’ that employees would reasonably understand it to encompass ‘discussions and interactions protected by Section 7,’” the Board found.

Employer Cautions

This decision is wide-ranging. It underscores the need for employers to pause, reflect, and thoroughly investigate before taking action against employees for alleged misconduct where they have acted together in regard to their wages, hours or working conditions, even where their language might give offense to the employer despite the fact that members of the public can view their complaints. The decision also shows the NLRB affords significant leeway to employees, even permitting public invective against business owners — at least up to a point. Finally, employers should avoid policies and rules that contain broad, imprecise, or vague prohibitions that might be viewed as restricting unlawfully employees’ protected activity. 

ARTICLE BY

Howard M. Bloom
Philip B. Rosen
 
OF
Jackson Lewis P.C.

Analog in a Digital World: Journalism and Blogs and Where to find Good Information

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In an article profiling John R. MacArthur, the publisher of Harper’s Magazine, MacArthur is quoted as saying, “I’ve got nothing against people getting on their weblogs, on the Internet and blowing off steam. If they want to do that, that’s fine. But it doesn’t pass, in my opinion, for writing and journalism.” The article goes on to note that MacArthur is “analog in his habits” because he “prints out articles to read” and that “[h]is version of searching for [a fact] on Google was yelling to a staff member, who hurried to deliver the information.”

McArthur certainly expresses a sympathetic position. A 24-hour news cycle has contributed to an environment where airtime needs to be filled – recent examples of well-publicized overexposure include CNN’s coverage of the Malaysian Air disappearance or the Casey Anthony trial. And because anyone with an internet connection and a Twitter account can “break” news, there is a race to the bottom as to which organization can print the news first as opposed to which can report it most accurately. The inevitably incendiary rush to judgment after the report of a rumor reported as fact seems only to support MacArthur’s position.

But where MacArthur and I part ways is in our view of what blogs or “lighter” commentary may provide. Instead of web commentary offered as simply “blowing off steam,” the internet is more of a tray of samples. You can try a little of anything, and if you’d like more, then that’s available to you as well.

That’s really the beauty of the internet, right? You can critique Buzzfeed’s lists, but they are a quick read that provide you with the opportunity to read more – possibly even from a true “writing and journalism” source. I mean, no one would think to use this blog exclusively as a defense to criminal charges or as any sort of compliance manual. But ideally, it would help you spot issues or pique your interest so that you read more on a particular topic, consult with counsel, or find a way to improve your workplace.

I like to think about the internet like a newspaper with only headlines. I can get the gist of the story from the headline, and if I’m interested, I can read more. (Example: “Salmon Spawning in Seattle” will not encourage me to read further. But hit me with “Cowboys Sweep Eagles, Giants” and I’m 100 percent in.)

MacArthur and I simply diverge on this implied concept that analog habits are somehow better than digital habits. Perhaps it is the trial lawyer side of me, but I try to be open to ways in which you can convey information. People learn in a variety of different ways: some learn by hearing, some learn by seeing, some learn by doing. Some have longer attention spans; some give hummingbirds a run for their money. So the more ways that you can find to reach people, the better odds of success you have in conveying information that they can use.

And that’s the takeaway point here (yay!). Imagine if your organization disseminated a ten-page written policy on what to do if a federal agent knocks on the door. That’s some important information right there. Is everyone going to read and understand it? Unlikely, right? Too busy to get to it right now, will read it tomorrow, and so on? Yup, that’s the MacArthur way. It just doesn’t work by itself.

Okay, change it up. Skip the written policy and instead conduct a 10-minute training session covering the key facts. Have you taught everyone everything they need to know? Probably not, but  you hit the high points. Even if a couple of folks dozing in the back of the room missed it. Right. That would be the Buzzfeed way. This doesn’t work by itself, either.

So instead, disseminate the policy to everyone, and you’ll capture the folks who learn by reading. And conduct your training session, and you’ll capture those folks who learn by listening. And then, as a bonus, rehearse the drill, so you capture those folks who learn by doing. It’s the last piece that most organizations miss, and thereby miss a huge opportunity to make sure their people understand the policies and that their policies actually work.

You can be analog like MacArthur or digital like Buzzfeed. But really effective communication is a blend of both … and just a touch more.

ARTICLE BY

Shamoil T. Shipchandler
 
OF
Bracewell & Giuliani LLP