Smooth Transitions : Rob Radcliff : Texas Non-Compete Lawyer & Attorney : Langley Weinstein LLP Law Firm : Dallas Employment & Employee Departures : Smooth Transitions Law Blog

Keeping with the NFL's Thanksgiving tradition, the Dallas Cowboys played the Miami Dolphins in Dallas last Thursday afternoon.  The Cowboys came out on top and now lead the NFC East.  That, however, was not grabbed my attention about the game.

In the fourth quarter, Cowboys tight-end Jason Witten caught a pass on the sideline.  His momentum carried him out of bounds where he ended up running over Cowboys Cheerleader Melissa Kellerman.  She wasn't injured and received a lot of camera time.

It is being reported that the Cowboys pulled the plug on Rae's twitter account.  This was after the following tweets:

I'm not the best at Jason Witten trust falls. ;)

Not hurtin' today, like some of y'all thought I would be!  Our TE isn't as tough as he looks...That or I'm way tougher than I look.;)

The Cowboys deny that there was any such instruction to Kellerman and that she personally made the decision to stop posting.  What actually occurred will probably never be known, but could the Cowboys or any Texas employer tell an employee to stop tweeting? 

First off, do the Cowboys have a social media policy for their cheerleaders?  Assuming there is a policy, does it prohibit them from discussing "company business".  In this case the company business would be the Witten sideline encounter.  Assuming there is such a policy the Cowboys could at least instruct Kellerman to stop tweeting about the company.  Now whether they would be entitled to actually instruct her to stay off social media all together is another issue.  That implicates free speech rights and other issues an employer does not want to implicate. According to the Cowboys there was no such instruction.

Bottom line, this is a great example of why a social media policy is a must have for most companies.  An employee can never foresee when an employee's social media activities may address goings on in the workplace, but they need to be prepared to address them with a robust policy.

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Fulbright & Jaworski’s 2011 Litigation Trend survey provides a number of interesting tidbits on all things litigation, including some insight into social media practices by employers. There were a couple of items raised in the survey that have serious implications for employers: 

•        One-fifth of all respondents reported in a previous year their companies had to preserve or collect data from an employee’s personal social media account;

•        19% of all respondents produced, as part of discovery, electronic information stored in a social media site in the past 12 months;

•        90% of U.S. respondents reported that they allowed their employees to conduct business on mobile devices; and

•        Only 30% of respondents had to preserve or collect data for them from mobile devices for litigation or investigation.

Archiving social media communications by employees is a big deal. In the context of broker dealers, FINRA requires that some social media communications be archived. Obviously, with FINRA, there is a large regulatory body governing broker dealers. But in the context of other businesses there is usually not that type of regulatory oversight. That said, should employers be protecting themselves by archiving this type of information? That will depend on the industry and costs involved.

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A related blog post was inevitable with the World Series here in North Texas.  Right now the Rangers are up 3-2 with a game tonight in St. Louis if the weather holds.   Now to the "related" post. 

The power of social media continues to grow, and Major League Baseball’s debacle with Dirk Nowitzki’s first pitch provides an excellent backdrop of the ease of which a grass roots movement can grow in a few hours or even days. 

On October 19, 2011, ESPN reported that Dallas Mavericks star Dirk Nowitzki was nominated by the Texas Rangers to throw out the first pitch at Game 3 of the World Series in Arlington. The MLB denied the request. It remains unclear what the basis for the “nixing” was, but many speculated that it related to the ongoing labor strife between in professional basketball

Twitter then went into full effect with the #letdirkpitch:

That generated more uproar amongst local media and criticism from all. Ultimately, someone made the decision that Dirk could pitch:

Once again, another example of social media and its ability to mobilize public opinion and criticism quickly and lead to change.  

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We are  pleased to announce that Lexis/Nexis has awarded this blog the distinction of being a Top 25 Labor and Employment Blog.  Thank you all for voting for the blog and following it over the years.  We will continue to work on bringing relevant content to the blog. If you have any suggestions please let us know. 

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FINRA recently followed up its issuance of Notice 10–06 on social media use with Notice 11-39 that takes on smart phone use by registered advisors. 

The regulations, which are approximately eight pages in length, provide some overall policies and then Q and A information. Advisor One provides a very detailed analysis of the regulations, including the distinction between unscripted “interactions” via a personal device and static postings.

One of the more illuminating questions deals with whether firms may allow representatives to use personal communication devices to perform business activities. The answer is yes.  But: 

the firm must be able to retrieve and supervise business communications regardless of whether they are conducted from a device owned by the firm or by the associated person.

In order to ensure that the business communications are readily retrievable without necessitating the capture of personnel communications made on the same device, firms should have the ability to separate business and personal communications, such as by requiring the associated persons use a separately identifiable application on the device for the business communications. 

FINRA is big on record keeping as illustrated above.   How the advisor and their employer will segregate personal communications from business communications remains to be seen.  Imagine having to constantly filter your business communications from your personal communications on email/twitter/facebook etc.  That is not an easy proposition. 

As we have discussed, many of the larger wirehouses are slowly rolling out social media programs for their advisors.  The archiving and control of business communications will be a challenge as they attempt to harness the flexibility of social media with the rigidness of the FINRA guidelines. 

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This blog has been nominated by LexisNexis as a top 25 Labor and Employment Law Blog for 2011.  If you like the blog, please consider voting for it - details below:

Each comment is counted as a vote toward the supported blog. To submit a comment, visitors need to log on to their free LexisNexis Communities account. If you haven’t previously registered, you can do so on the Labor and Employment Law Community for free. The comment box is at the very bottom of the blog nomination page. The comment period for nominations ends on September 12, 2011. We will then post the Top 25 Labor and Employment Law Blogs of 2011. Thereafter, our community will vote to choose the Top Blog through a Zoomerang survey. I anticipate the final announcement to be made at the end of September.

Also, please consider my co-authors on the Think Before You Click book.

Thank you for consideration and continued reading.

Rob

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Tune into the Proactive Employer for a roundtable social media podcast that a number of sharp lawyers participated in last week.  Should be something for everyone. 

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On July 14, 2011, I will be a part of a panel discussion on social media on the Proactive Employer podcast - http://www.blogtalkradio.com/theproactiveemployer. Please check it out.

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 Rep. Weiner decided to come clean and admit the Tweet and attached picture he sent to a woman was sent by him and of him. According to CNN, Weiner's communications were not limited to one woman and took place with several over the last three years.  I'll spare you the salacious details and pose the following question:  If Weiner worked for you what would you do?

One of the issues that jumps out is whether Weiner improperly used government resources for his communications.  He addressed this during his news conference yesterday and indicated he owns his Blackberry and that:

I don't believe that I used any government resources

If his communications are as prevalent as believed there will be additional disclosures about who was paying for his Blackberry services and whether his social media communications were conducted on platforms other than his Blackberry - i.e. a government computer.

In review of Weiner's actions, his employer should probably be asking the following questions:

1. Did Weiner improperly use company resources and time to conduct these communications?
2. If so, is there a company policy against use of company resources for this type of conduct?
3. Assuming there is a company social media policy in place, did Weiner violate it?
4. Did his conduct violate some other type of company policy?
5. Forget policies for a second, is what he did a fireable offense?

An employer would hope that a senior employee, like a Congressman, would be smart enough to avoid this type of conduct but this is wishful thinking.  As a result, it is up to the employer to have in place policies that address this type of conduct and provide the basis to either terminate Weiner or reprimand him. 

One thing for sure is we have not heard the last of this story.  It will be interesting to see if he goes the route of the sexual addiction defense - how should the employer handle that claim?

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Ohio lawyer Jon Hyman provided some insight yesterday on the NLRB's latest social media case.   The short of it is an employer is alleged to have fired five employees because of negative Facebook posts about employment conditions.   Others have weighed in on the propriety of the firing, but from my perspective that's not the interesting part of the story.

The interesting part of the story is how did the employer know about the posts?  Did an employee report the communications to management?  Did a manager, who was a Facebook friend of the employee, see and report the communication?  Was the employer monitoring these communications?  Does a manager who observes these types of communications have a duty to report them to the company?

Most employers do not want to create, or at least leave the impression that "big brother" is watching its employees shades of George Orwell's 1984.  That said, assuming an employer can properly review an employee's tweets or updates, should they? 

Maybe (typical lawyer answer).  There is no one size fits all answer.  There is a difference between being nosy and protecting a business.  There are some good reasons to do so: (1) ensure nothing improper is going on in the workplace; (2) monitor morale in the workplace; (3) ensure there are not improper disclosures about company business including customer and confidential information; and (4) monitor the possibility of employee departures.  There are also a lot of reasons not to do so, including privacy and other legal ramifications and the "1984 effect" where there is a sense in the workplace that employees are being watched.

As social media communications continue to rise employers are going to have to evaluate whether a formal policy on monitoring social media communications is necessary.  Employees also need to think about whether it makes sense to friend or follow their supervisors.  There is no right or wrong answer, yet.

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It's a little disturbing to think that your smart phone is secretly tracking your whereabouts and hiding the information in some discrete place only a computer scientist can find.  That appears to be what the iPhone is doing.  According to the Wall Street Journal, even turning off the tracking features of an iPhone does not work:

The Journal disabled location services (which are on by default) and immediately recorded the data that had initially been gathered by the phone. The Journal then carried the phone to new locations and observed the data. Over the span of several hours as the phone was moved, it continued to collect location data from new places.

These data included coordinates and time stamps; however, the coordinates were not from the exact locations that the phone traveled, and some of them were several miles away. The phone also didn't indicate how much time was spent in a given location. Other technology watchers on blogs and message boards online have recorded similar findings.

What are the repercussions of this type of data?  Lawyers are historians of sort, in that they are constantly trying to determine the facts leading up to certain key events.  Inevitably, there are facts that are disputed and there is contradicting testimony.  So, we then look to objective evidence of what actually occurred - calendars, emails, etc.  What better evidence then a phone that has documented where a person has been? 

Though it may not be entirely accurate (as described above) it could certainly provide some evidence and help to reconstruct the time line of events.  It will be interesting to see how Apple handles this issue and I wouldn't be surprised if other devices were doing the same thing.   Nevertheless, get ready for discovery requests that seek that secret file buried in the iPhone that locks down your movements.  Is Big Brother watching you?

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A few social media signs that an employee is leaving:

1. The Obvious -  A Linked-In or Facebook profile update that includes the name of a person's new employer;
2. The Obvious - An actual description of the new employer or business in a social media profile;
3. The Obvious - A status update where the employee announces their departure;
4. The Obvious - A posted link to the new business or venture;
5. The Obvious - Outright solicitations from the former employee to the employer's customers;
6. The Obvious - General solicitations for business or leads;
7. Subtle - A request for a reference for a website designer or IT help;
8. Subtle - A request for a reference for someone to put together business cards, stationary, etc. - basically anything someone would need to start up a business;
9. Subtle - A request for legal advice regarding business entities (the new business will need a corporate form; and
10. Though not a necessarily social media related, a request from the employee for their employment contract. 

The interesting byproduct of social media sites is that many employees now maintain their business contacts on line.  A departing employee will alert their contacts that they are leaving.  The question then becomes what can or will the employer do to keep their clients/customers?

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Daniel Schwartz's latest entry on social media discovery illustrates how easy it is for parties in a lawsuit to obtain someone's Facebook records:

No longer are companies required to spent countless hours subpoenaing Facebook for the records of the terminated employee who is suing you. Just ask for the Plaintiff to download all of his or her information and then move to compel if he or she doesn't.

Facebook now includes a feature that allows a user to obtain and print out all of their historical Facebook activity.  The reason this is important is because discovery in many instances is limited by cost and a court's hesitancy to allow parties in a lawsuit to conduct fishing expeditions.  Now both the cost and burden of obtaining this information is minimal.  Of course, whether the requesting party is on a fishing expedition will remain an issue.

Other social networking sites allow for some historical information.  For instance, Twitter allows individuals in most instances to see a person's previous entries.  The point of this is most of these sites may follow the lead of Facebook and make this type of information easily obtainable.

In the context of non-compete and trade secret cases, Plaintiffs are always trying to reconstruct the departure of the employee.  Did the employee print out customer information or trade secrets at midnight the night before they resigned?  Or did they simply dump the information onto a zip drive for future use?  Any circumstantial evidence that an employer can develop is helpful in reconstructing the time line - social media may have that information or evidence.

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Let's face it there is a lot of nastiness out there in cyberspace.  For some reason some feel more empowered to say about anything on message boards, social media outlets, and chatrooms.  Those statements however can form the basis for a lawsuit.  Kurt Cobain widow and Hole lead singer Courtney Love has been sued by a fashion designer over tweets authored by Love that were less than flattering. 

Let me state the obvious - statements on Twitter can serve the basis for the defamation suit.  There is no social media exception.  Additionally, those statements will be seen by many and are easily accessed - this can lead to a large damage claim.  While it is a lot easier to rip into someone on Twitter as opposed to in person it may ultimately have the same legal consequences. Let's be nice out there.

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Advice is aplenty for business owners on what should comprise their social media policy.  The universal comment is the policy should be tailored to the particular business and there is no one-size-fits-all policy. 

Professional sports leagues are not any different.  Last year the NFL set forth its social media policy in a league memo.  The highlights:

•  players can use social media 90 minutes before any game and following media interviews post-game; and
• players nor anyone acting on their behalf can use social media platforms during a game including halftime.

The league policy was in response to some more prolific social media users like Chad Ochocinco who has a  million followers.  During the pre-season this year he was fined for the following tweet:

Man I'm sick of getting hit like that, it's the damn preseason ------! 1 day I'm gone jump up and start throwing hay makers (sic).
 

Fines have continued.  Most recently, Michael Oher, the subject of The Blindside book/movie was fined for tweeting about his injury status during a game. 

The NFL's policy is clear and more importantly it is enforced.  To some degree it is monitoring the tweets of its employees (the players) and fining them appropriately when a violation occurs.  Not all companies can afford to monitor social activity but they can employ spot checks periodically.  The point is to get a tailored policy in place and uniformly enforce it. 

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For those that attended the DFW AMA Marketing Jam, here is my presentation. 

Here are some relevant links as well:

The FTC's Settlement of the Reverb Case

New FTC Guidelines Affecting Social Media

The Digital Millennium Copyright Act

Thanks for attending.

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I will be speaking at the DFW AMA Marketing Jam next week.  Please see below for details:

DFW AMA Marketing Jam Roundtable Flyer

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There have been numerous discussions here regarding individuals chronicling their daily lives through the use of Facebook, Twitter, blogs and other social media. We can provide location information through foursquare or talk about our job through a Facebook status update or Twitter tweet. The possibilities are endless and lawyers are beginning to focus on social media outlets in the discovery process.  

In a recent post by 3 Geeks and a Law Blog, the authors examine a defense attorney’s request for social media information related to a personal injury plaintiff.  Specifically, the Court addressed whether the defendant was entitled to the current and historical Facebook and MySpace pages of the plaintiff.  The defendant claimed it has reason to believe the plaintiff had posted pictures and information clearly demonstrating he was not suffering injuries or a loss of enjoyment of life – a claim in the lawsuit.

The Court agreed and ordered that the plaintiff provide a properly executed consent that would allow for obtaining Facebook and MySpace information. The discovery requests were narrowly tailored and sought information specifically related to the plaintiff’s alleged damages. It was not a fishing expedition.  What if the defense attorney wants more general information?  She could use Twitter or Facebook entries basically to recreate a time line of events for various plaintiffs and defendants in cases.  The same goes with other information offered in social media outlets, like blogs, foursquare, and LinkedIn.  It will be interesting to see how Courts handle these type of discovery issues.   A rule of thumb - assume everything posted or authored on these sites is discoverable.

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Social media sites can give an employer/recruiter information about potential hires that you can't ask in an interview.  Take Facebook for instance, you can learn the following about me from my profile and posts:

• Race/Ethnicity - just take a look at my picture;
• Age - set forth in my profile;
• Marital Status - set forth in my profile;
• Children - take a look at my pictures; and
• All the other information you can glean from pictures, status updates, etc.

The point is, there is an endless amount of information out there - much of which you cannot consider when making the decision to hire someone.  However, there is information that is not protected. 

What if there was a Facebook status update where the candidate stated they were fired from their last job for filing false reimbursement reports or the fact they have a non-compete agreement with their former employer?  These could be legitimate reasons not to hire someone.

So why shouldn't you incorporate social media searches as part of your company's hiring process?  A few reasons:

1. A lawsuit over discriminatory hiring practices will almost certainly delve into whether social media screening is used as part of the hiring process;
2. A Plaintiff could always allege, whether true or not, that information obtained from social media was used in the decision not to hire them;
3. How do you document you didn't use something - hard to prove a negative;
4. It's not possible to unlearn information obtained from social media - like the pregnancy status of a potential employee; and
5. Is it really even worth it considering the potential liability that could arise?

It's always easy to say no.  Next week I'll examine the other side of the coin.  The short of it is, there is no right or wrong answer and each company's conclusion will depend on what information they are looking for and how they implement such a process.  There is no one size fits all answer.

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This Friday I will be speaking at TalentNet Live regarding the implications of social media in the hiring process.  I hope you can join me.

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