Smooth Transitions : Rob Radcliff : Texas Non-Compete Lawyer & Attorney : Gruber Hurst Johansen & Hail LLP Law Firm : Dallas Employment & Employee Departures : Smooth Transitions Law Blog

                                        

With the rise of social networks that permit us to update the world on the details of our lives and smart-phones that allow access to email, social networks, and the internet 24/7, there is always something to do. Take a look around. On my drive into work there is always someone on a phone texting, emailing, or talking. Same thing when I am in line at a store or even at my daughter’s soccer game. The worst is when I’m in meetings and the “constant emailer” can’t put down their blackberry for 5 minutes. (Sometimes I'm the constant emailer.)  There is no downtime.

 

I’ll leave the social commentary to those more qualified. But, from a legal perspective we are now creating a never-ending stream of written material that in many cases is archived a/k/a evidence. Email, social network posts, and other records can be used to recreate the details of a particular event or day. For example, if an employer has a general idea of when an employee began actively planning to establish a competing venture in violation of a non-compete, the discovery is endless. The employer now plaintiff can seek emails, Linked-in communications, Facebook posts and even phone records to trace the evolution of the competing business.

 

It seems as though we’re well past putting the brakes on 24/7 evidence creation through email and social media. But, everyone must be cognizant of what this means for business and employment disputes. Privacy, in many instances, is being abandoned by choice as we disclose our life's details on the web.

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Today Bridget Blinn of my firm and I had the privilege of speaking to the FPA of Dallas/Fort Worth.  Below are some helpful links I referenced during the presentation:

• FINRA Regulatory Notice 10-06 - http://tinyurl.com/22np4vt
• CFP/FPA Memo on the Financial Stability Act - http://tinyurl.com/292abw
• Equal Unemployment Opportunity Commission - www.eeoc.gov
• Texas Workforce Commission - www.twc.state.tx.us
• Department of Labor - www.dol.gov
• FINRA - www.finra.org

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In cases with significant email traffic lawyers often use applications that sift through emails and documents using specific search phrases and terms.  Usually, the search terms and phrases tie to significant issues to the case or dispute.  Recently, the search terms used by the lawyers investigating the Lehman Brothers debacle were published. Those lawyers were charged with going through approximately 700,000 plus documents which totaled somewhere around 8 million pages.  They used a variety of search terms/phrases but the search that stood out was this one:

Shocked or speechless or stupid* or “huge mistake” or“big mistake” or dumb or “can’t believe” or “cannot believe” or “serious trouble” or “big trouble” or
unsalvageable or “too late” or ((breach or violat*) w/5 (duty or duties or obligation*)) or “nothing we can do” or uncomfortable or “not comfortable” or “I don’t
think we should” or “very sensitive” or “highly sensitive” or “very confidential” or “highly confidential” or “strongly disagree” or “do not share this” or “don’t share this” or “between you and me” or “just between us” or ((can’t or cannot or shouldn’t
or “should not” or won’t or “will not”) w/5 (discuss or “talk about”) w/5 (email or e-mail or computer)) or should w/5 (discuss or talk) w/5 (phone or “in person))

There are countless examples in the report.  As discussed here before, common sense is usually the best approach to determining whether your email is environment appropriate, but there is also a second level of screening.  I'll call it the "smoking gun" screen. How would you feel if the email you just sent was put up in front of a jury and you were cross-examined on its contents?  A far stretch in most circumstances but an issue that should always be in the back of the author's mind. 

Consideration of what is placed in an email should go beyond avoiding foul language and crude humor.  There are simply some issues that should not be addressed in electronic communications.  It ultimately goes back to common sense - there is no written policy that can provide sufficient guidelines.  Sometimes a phone call or even face-to-face meeting makes more sense than an email that lacks context and fails to adequately convey the issue.

(h/t Jacob Goldstein with National Public Radio)

 

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For those that are interested, I will be speaking on June 27, 2010 to the FPA Dallas/Ft. Worth Tarrant County Chapter regarding  the New FINRA Regulations on Social Media. 

On July 9, 2010, I will be speaking on Temporary Restraining Orders in Judge James Stanton's Court, the 134th Judicial District, Dallas County, Texas. 

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There are more and more stories about employees being fired/disciplined for improper use of social networking sites.  The most recent was the waitress who complained about the customer who only tipped $5 in her Facebook update post --- she was fired.  Others include:

• The firing of a Dallas radio producer who made negative remarks about Spurs fans in a Tweet.  (He also happens to be the pitcher who served up Barry Bonds' 756th home run.)
• Ex-Kansas City Chiefs' running back Larry Johnson'a tweets that cost him his job.
• The non-profit employee who had a sex blog.
• The Scottish politician who was forced to end his campaign because of Twitter rants.

Do you have any other examples?

 

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You've probably seen friends, coworkers, family members, and strangers glued to their "smart phone" of choice as if it is somehow an appendage.  The use/addiction to these items is increasing as we become more and more mobile.  A couple of interesting stats courtesy of CNN:

A Pew study found in January that 80 percent of American adults have cell phones and 30 percent of them access the internet on their phones. In 2000, 50 percent of American adults used cell phones, according to a Gallup Poll, and phones rarely supported access to the web.

More than 28 percent of employers fired a worker for e-mail misuse in 2007, compared to 14 percent in 2001, according to the American Management Association.

We can text, email (from both work and hotmail accounts), tweet, and post on Facebook from these devices.  Some of the devices may actually be provided by our employer or the employer may pay for data/wireless service.  So does an employer have the right to see those texts, posts, or emails? 

The United States Supreme Court is considering a California case where the Ontario, California Police Department reviewed sexually explicit text messages that a police officer sent from a police owned electronic device.  The Ninth Circuit previously held the police department's actions violated the officer's privacy rights because its actions constituted an illegal search and seizure.  The case was argued before the Supreme Court on Monday. As usual, SCOTUSBLOG has an excellent analysis of the case and play-by-play from the oral argument.   

Many think the Court will limit its opinion and any ruling will have limited implications.  Nevertheless, employers and employees should be cautious.  Employers have the right to look at company email in most circumstances, that seems to be accepted.  As previously discussed here, whether employers can review gmail or hotmail emails that emanate from a company computer or mobile device is unclear.  The same is probably true for texting or social media posting.  Now, the line becomes blurrier if the mobile device is owned by the employee but the service is paid for by the employer. 

Employers must proceed with caution and on a case by case basis before accessing these types of communications.  Of course, they could be very important in situations where an employee may be taking trade secrets or preparing to violate a non-compete agreement.  As is a recurring theme on this this blog, employees should assume that any electronic communication may ultimately be published to the world.  Though emails and texts are more convenient, phone calls and face to face meetings are still an option.

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Seventy percent of participating U.S. employers indicated they had rejected a job applicant based on their on line profile in a recent Microsoft survey.  U.S. employers were well ahead of the UK, Germany, and France:

                         

The study found that employers' scrutiny focused on concerns about the applicant's lifestyle, inappropriate comments by the candidate, and unsuitable pictures and video:

Continue Reading...

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Different companies have different and evolving social media policies that hopefully are tailored to the companies' business but below are some social media commandments that most every employee should follow. Here is a start:

(1) Assume everything you post is being read by your boss, supervisor, and grandmother.  The point is once content, updates, posts, pictures etc., are released into cyberspace, they cannot be retrieved.

(2) Don't badmouth your customers, company, coworkers or your boss.  Seems like a common sense proposition but some think their on line content is somehow insulated from their work life, it is not.

(3) Think about who you friend or follow.  You can tell a lot about people based on who they are friends with on Facebook or who they follow on twitter.  That's not necessarily a good or bad thing but how much do you want to reveal about yourself?   Do you really need to be friends with your boss or subordinates?

(4) Common Sense - use it.  Most issues can be avoided by simply using a little common sense.

What would you include?

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FINRA recently provided social media guidance to broker/dealers.  The Regulatory Notice  guides firms on applying communication rules to social media sites which FINRA defines to include blogs and social networking sites like Facebook.  It does not apply to sites used for purely personal reasons but the line between the two blurs as the growth of social media continues.

What are the highlights?  Here are a few:

• If a firm or its personnel are using social media to communicate about business it is required to keep records of all such communications.
• Don't recommend a security on a social media site or it will trigger the requirements of NASD Rule 2310 regarding suitability.  
• If a firm is going to recommend a security such recommendation must be approved approved by a registered principal of the firm.
• Webinars and other interactive electronic forums like a chat room are considered a public appearance under NASD Rule 2210.
• Static information on social media, such as a profile, background, or wall information must be approved by a registered representative before it is posted.
• FINRA considers a static blog an advertisement that requires approval of a principal but a blog that permits real-time interactive communications does not require prior principal approval.
• Interactive communications on a social media site that are real time do not require a registered principal’s approval.  
• Even though a principal's prior approval may not be necessary, the firm must supervise these electronic communications in a manner reasonably designed to ensure they do not violate the content requirements of FINRA's communication rules.

The notice goes on to provide more detail on supervision of social media sites and third-party posts.  Needless to say it's unlikely that a broker/dealer will recommend a security over Twitter or Facebook - that's just not smart at a number of levels.  Any real time communications regarding securities will require supervision by the firm and archiving of those communications.    I'm not sure the notice will "chill" social media use by broker/dealers but I'm also not sure it will drive them to use it as a business device other than general networking.

 

 

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Tiger Woods'  use of text messaging underscores the repercussions such communications can have, especially when the messages are released from the recipient to a third party.  Apparently, Tiger sent text messages to one of the women he is alleged to have had an affair with and she has offered the texts as proof.  Tiger isn't the first to down by way of the text message, as former Detroit Mayor Kwame Brown can attest to, and odds are he won't be the last. 

Text messaging may appear to be "safe" for communications of this sort but it is not.  In addition to the Tiger example, texting can be front and center in lawsuits.  Consider a scenario where two employees decide to leave their employer and take valuable customer information with them.  They coordinate their departure through text messages because they believe this is safe communication as opposed to email.  Is it?  Can the employer obtain the texts through discovery?  

There are three potential sources to obtain text messages: the phone, the phone company, or the recipient. Once texts are deleted from the phone, it "sticks around" as described in Slate:

until enough new information is added to fill that memory, your old text message will remain on your device. If you used a SIM card to store your text messages before you erased them, then there might be space for the remains of 30 or so deleted messages; if the messages are downloaded directly to your phone, several hundred deleted messages could stick around on your device. Eventually, of course, the deleted messages will disappear as memory is filled with new messages, photos, or videos.

Phone providers have different policies on how long they maintain text files: AT&T Wireless keeps messages for 48 hours while Sprint keeps them on its server for approximately two weeks.  So it is unlikely that text messages can be obtained from the phone company unless you know about the messages near the time they were sent.

The third source, the recipient could keep the text forever.  They could print out the text, save it, or send it to other people.  The point is once you release the text message, just like an email, you have effectively published it to the world. 

The party to a lawsuit may have a difficult time obtaining text messages through discovery but should include requests for these types of communications.  Also, in appropriate instances, discovery should be directed to potential third-party recipients of such messages.

 

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An update on Larry Johnson:  He's found refuge with the team of last resort, the Cincinnati Bengals. 

A good question was raised in response to the Larry Johnson post last week:

Would incidents like this be reduced if companies had a social media policy in place and provided guidance on acceptable use? It's seems as though having a policy that's made available and signed by employees could make it easier to terminate employees that cause harm via social media.

Most companies have some type of policy that cover internet use which is usually applicable to social media.  They range, as we have discussed, from some that outright prohibit social media use to those that actively encourage social media use.  It depends on the business.  As suggested, having a policy in place that an employer can point to  makes legal scrutiny of a termination much easier to defend. 

 

 

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Most people wouldn't mind the life of an NFL running back.  Get paid millions of dollars to play a game.  Larry Johnson was a number 1 draft pick of the Kansas City Chiefs in 2003.  He made the pro bowl and in August 2007 signed a contract that was to pay him $45 million dollars through 2012, the biggest contract in Chiefs' history.

Along the way Larry was arrested a few times, was sued, and even got into social networking.  The latter would be his downfall.  Johnson maintains a website, blog, and has a twitter account.  Twitter has been a big player this year in the life of the professional athlete.  Players have used it to criticize coaches, management, and fans.  Johnson was no exception.

First he took on his Coach Todd Haley.  Then he had a few exchanges with Chiefs' fans:

Along the way Johnson made a slur about gays and seemed to alienate everyone.  He was suspended by the Chiefs and on the day he was to return was waived - purportedly for another tweet.  It also didn't help that 32,000 Chiefs' fans signed a petition demanding his waiver.

Johnson is an extreme example of an employer's reaction to inappropriate social media use.  Employers should not tolerate employees engaging in verbal warfare with customers a.k.a. fans.   Johnson cost himself a few million dollars exercising his free speech.

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Over the past few months Twitter has exploded.  It's everywhere, from Best Buy advertisements to Lance Armstrong's updates during the Tour de France.  Twitter has 23 million users and 54% of Fortune 100 companies have some Twitter presence.  The point is, Twitter is not going away in the near future nor is social media. 

For some reason people have a hard time remembering that employers, prospective employers, friends, enemies, and worst of all lawyers are monitoring social media.  Individuals are creating an on line biography on a daily basis.  In the future, candidates for public office and prospective supreme court justices will have to account for wayward tweets and Facebook posts.  Take a look at these examples of off- color tweets from Mark Toth at manpowerblogs.com:

•“hate my job!! i want to tell my bosses how dumb they are and how meaningless this job is, then quit, and be happy!”
•“with my boss on twitter, maaaybe I should take down that sexy picture of her . . . but her reaction will be priceless!”
•“so my job was to test all the food at the new restaurant, can I just say, ughew. I’m going to taco bell . . .”
•“smoking weed at work is so [expletive deleted] great ”
•“I’m really bummed that I’m working today, i asked off so i could study but my boss is a [expletive deleted] who can’t read.”
•“Coworker smuggled out a chair for me. Currently being paid to SIT around . . . I don’t hate my job today!”

Ridiculous, right?  Individuals need their own self-imposed media policies. I propose a simple one in honor of my Granny who had her birthday over the weekend. If you would feel uncomfortable having Granny read you tweet, Facebook post, or blog entry, don't post it. Game, set, match. 

 

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A recent study by Deloitte concludes that 60 percent of executives believe they have a right to know how employees portray both themselves and their employers on online social networks. 

On the flip-side, 53 percent of employees say such postings are not their employer's concern and in the 18-34 demographic that number rises to 63 percent. 

Balancing an employee's right to self expression with the business concerns of her employer has been discussed previously here but surprisingly not by many executives according to the survey: 

Organizations grapple with the notion of reputational risk within the context of employees self-expression.  Meanwhile, news of major global bands being impacted by the online activities of their people suggests that discussions around the topic need to be elevated to the highest levels of leadership.  That said, surprisingly only 15% of executives surveyed are addressing these risks in the board room though 58% agree it is important enough to do so.

Moreover, a mere 17% have programs in place to monitor and mitigate the potential reputational risks related to the use of social networks.

The survey also concludes that "clearly defined company guidelines will not change how nearly half the respondents behave in cyberspace."  It concludes:

Therefore attempts to mitigate reputational risk in these online communities should include an emphasis on culture, values, and ethics within an organization.  By reinforcing these fundamental elements, business leaders will have the opportunity to encourage good decision-making in virtual social networking environments.

It's clear based on the survey results that an effort above and beyond the standard internet policy is necessary to deal with social networks and the employee.  Employers will have a difficult time attracting talent if they police their employees' online presence, but where is the balance?  These policies will have to be based on the specific needs to the company and include some flexibility.  This is and and will continue to be an ever evolving process.  There are no hard and fast rules.

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An article in yesterday's Wall Street Journal focused on corporations use of Twitter and scrutiny of Tweets by the SEC.  The article identified the rub between corporate transparency and SEC compliance:

Blogs and tweets can run afoul of Securities and Exchange Commission regulations on corporate communications. But sanitizing such posts risks hurting credibility with online audiences.
 

Some companies are still hesitant to allow their employees to address investor issues online:

 Intel Corp. in May will be among the first companies to allow shareholders to ask questions via the Web and vote online during its annual meeting. But the chip maker avoids blogs and Twitter for investor issues, because it fears violating SEC disclosure rules or inviting public criticism in a company-hosted forum, says Kevin Sellers, vice president of investor relations.

"There's always going to be a person with an axe to grind," he says. "Do we really want to sponsor that?"

The article goes on to suggest that employers have appropriate social-media policies (as discussed here previously) and use appropriate disclaimers.  Ironically, the SEC is now on Twitter.

On a lighter note, below is an instructional video on Facebook manners:

 

 

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Some employees access twitter and facebook at work.  Some have applications on their company provided handhelds that allow access.  Others are blogging about the workplace.  What is the right social media/web 2.0 policy?   It needs to match company culture and standards. What works for a brokerage firm may not work for an upstart computer gaming company.  So what are companies doing?  Let's take a look:

                                                        

I like Cisco's policy.  It's long, but the common sense approach is always pragmatic:

Common sense is the best guide if you decide to post information in any way relating to Cisco. If you are unsure about any particular posting, please contact the Cisco "internet postings" email alias for guidance. For instance, if you are writing about Cisco business where you have responsibility, you may wish to make sure your manager is comfortable with your taking that action.

Sun Microsystems wants its employees to consider the consequences:

The worst thing that can happen is a Sun sales pro is in a meeting with a hot prospect, and someone on the customer's side pulls out a print-out of something you've posted and says "This person at Sun says that product sucks." In general, "XXX sucks" is not only risky but unsubtle. Saying "Netbeans needs to have an easier learning curve for the first-time user" is fine; saying "Visual Development Environments for Java suck" is just amateurish. Once again, it's all about judgment. Using your public voice to trash or embarrass the company, our customers, your co-workers, or yourself is not only dangerous, but not very smart.

                                                    

Finally, the Department of the Navy ("DON") likes Web 2.0, but security is paramount:

While these collaborative tools present many useful opportunities, their application must not compromise data confidentiality and integrity. SIPRNET provides a secure environment to operate Web 2.0 tools; however, NIPRNET is exposed to external threats that could adversely impact Web 2.0 tool operation and data integrity. Therefore, extra care must be taken when implementing Web 2.0 technologies or integrating these tools into the DON environment.

Policies range from company to company.  Some business will encourage blogging, facebooking, or even twittering to help promote their business. Others will prohibit employees from engaging in freelance public relations.  At a minimum, there has to be a standard to hold the employee accountable to.  Companies need policies.

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I was interviewed today by business development coach Cordell Parvin.  The topics include this blog, Twitter, and Facebook. 

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Chances are you or someone you know is on Facebook, MySpace, or LinkedIn. Google yourself and you'll probably see a LinkedIn or Facebook biography. Potential employers and recruiters will see the same information during the hiring process.

When I prepare for a deposition I always do basic Internet research on a witness. It's probably a safe assumption that business prospects and competitors are doing the same thing. This type of screening is cheap, quick, and turns up all sorts of information from previous employment, education, civic involvement, and even your time in the neighborhood fun run.

The reality is the Internet now documents all aspects of our lives. An Internet biography is being updated in real time for each of us and has a wide range of content. Social networking tools are wonderful in theory, but they contribute to our Internet biography.

There is no reason to quit updating your Facebook status. But as with anything in writing, assume it will be seen by all, not just your Facebook friends. Welcome to the reality of Web 2.0.

Disclaimer

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