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

Dallas City Hall revealed that a number of city employees were on Facebook a few too many hours during the workday:

• A City analyst had his Facebook account open for 68 hours during a three month period beginning in January. 
• One racked up 198 hours in the same three month period. 
• Others, including a code Inspector, office assistants, convention centers, a convention center group leader, a water utilities engineer, and a cultural affairs coordinator all had in excess of 100 hours. 
• Employees together clocked in more than 3,000 hours on the site.

Now these numbers may be a little misleading because tracking the amount of time the actual user was logged in is not necessarily indicative of how long they were actually using the site. Needless to say, these results are not surprising. Take a walk around your office -  odds are someone is on some social networking site.

The question for the employer becomes how to govern this use?  In some cases, social networking may be encouraged for business reasons.  Ultimately, the employer must have a clear social media policy in place that addresses what appropriate use is or is not - policy - policy - policy.  This will vary from employer to employer.

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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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Although it's nice to have high paid jury consultants and days to ponder potential jurors, the reality is in most jury trials the lawyer is handed a list of potential jurors minutes before they walk in the Courtroom door.  It's then up to the lawyer and his client to sift through basic information about the individual (race, religion, profession etc.) and then ask twenty minutes worth of questions to hopefully learn more.  Jury selection is more of an elimination process than a selection process.

With the rise of social networking sites, blogs, and the like, more an more people have some sort of an internet presence.  Trial lawyers, from prosecutors to defense lawyers, are using that information during the jury selection process.  As illustrated in a recent Wall Street Journal article, lawyers are using the net through ipads and laptops to try an obtain information about prospective jurors as they sit in the courtroom.  An example:

Paul Kiesel, a plaintiffs' lawyer in Beverly Hills, Calif., said his firm ran searches of social-networking sites during the jury-selection process in a recent sex-abuse case involving a Catholic priest. The case was settled, but Mr. Kiesel said the information would have proved invaluable.

"We could glean whether someone was identified with a religion, and get a sense of how devout they seemed to be," he said. "It's a waterfall of information, compared to the pinhole view you used to get."

Jury selection is but one example of lawyers using Internet research.  Assume that the same information is being obtained for potential witnesses and parties at the outset of a lawsuit.  The point is that social networking information is fair game in Court and it provides a candid look in many instances of the thoughts and predispositions of people. 

This type of research will continue and become more extensive as  individuals develop more and more of an on line history.  Don't be surprised if within the next few years there are actually services that will provide this type information for a fee - there are already some that do so in the employment background search world.

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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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A few months ago I profiled a non-compete/non-solicit lawsuit where the Plaintiff employer used LinkedIn communications as evidence to support their claims against several former employee recruiters.  The case was covered in a number of media outlets and blogs.

In the interim the Defendants answered the lawsuit and filed a counterclaim.  Here's what the counterclaim alleged:

• Representatives of the employer told one employee that he could continue to work in the recruiting industry as long as he didn't call on the Plaintiff's customers;
• The non-compete agreements are unenforceable; and
• The Plaintiff is tortiously interfering with their new employment agreements.

In their answer, the Defendants allege that what the Plaintiff claims is confidential customer information was publicly disclosed through social media and is no longer protected:

Plaintiff’s claims that relate in anyway to customer and/or client information fail to the extent that Plaintiff, or its employees, have thrust said information into the public domain through the use of sites such as, LinkedIn and Facebook, and/or to
the extent Plaintiff encouraged its employees to place said information into the public domain.

The case is set for trial in August 2011.  We'll keep you posted on any further developments.

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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:

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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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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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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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