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

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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