According to Consumer Reports, “[m]ore than 5 million children ages 10 and under – well below Facebook’s minimum age of 13 – use the service[.]”   The Wall Street Journal reports that Facebook apparently recognizes that reality (and potential?) by scrapping its prohibition on use by minors, and is “developing technology that would allow children younger than 13 years old to use the social networking site under parental supervision, a step that could help the company tap a new pool of users for revenue but also inflame privacy concerns.”

It is bad enough that our teenagers and young adults are sacrificing some inter-personal and writing skills for the sake of being embedded 24/7 in texts and other online social networking.  Now we really want our 7-year olds choosing Facebook over Elmo?

Employer Take Away:   What should you as an employer take away from this development?   

Yes, there is an employment law message in here.   Sometimes social media is the issue itself for the blog, and, sometimes, it is the impetus for raising a more general employment law issue.   Today, it’s the latter.

Facebook may be bending its own terms of service to suit itself when it comes to minors, but that doesn’t mean that your company can.   While states may have more restrictive requirements, you should keep in mind the following federal requirements when it comes to the employment of minors:

• Under the age of 14 à  May not be employed.
• Between 14 and 16 years of age à  Limited employment is ok in certain occupations, other than manufacturing and mining, provided that the employment is during periods that do not interfere with school, and the employment does not expose the child to conditions that are harmful to health and well-being.
• 17 years of age à  Limited employment is ok in certain occupations that are not deemed to be particularly hazardous.
• 18 years of age and older à  May be employed.

Siri is that trusted iPhone assistant who you believe is talking directly and only to you.  Siri has become a useful resource for many – someone to assist with dictation or Web searches, or someone to simply act as your own George Glass when you’ve got no one else (I’ve been looking to make my first Brady Bunch reference for some time).

But here too is a potential concern for employers in an area that we have been discussing with greater frequency:  the protection of trade secrets and avoidance of data breaches.  Because of concerns over Siri’s loose lips, IBM recently decided to ban employee conversations with Siri in its workplaces.  As Max Eddy at Geekosystem describes the Siri process, “Siri works by recording your query, whisking it away to a data processing center over your data connection, and then returning the results.  The heavy lifting of natural language processing is done elsewhere, as well as on your phone.  Apple stores your voice queries at its data center in order to improve Siri’s results.”   

And that’s precisely IBM’s concern.   Not only that its sensitive information may be leaked to the public (even unwittingly), but that it is maintained as well by its big competitor and Siri creator – Apple. According to MIT’s “Technology Review”, IBM’s Chief Information Officer described IBM’s concern as follows:

“IBM fears that using such software could allow confidential information to get loose. In the survey, other employees were found to be violating protocol by automatically forwarding their IBM e-mail to public Web mail services or using their smart phones to create open Wi-Fi hotspots, which make data vulnerable to snoops.”

As a result, “IBM even turns off Siri, the voice-activated personal assistant, on employees’ iPhones. The company worries that the spoken queries, which are uploaded to Apple servers, could ultimately reveal sensitive information.”

I can already see it now.   I will soon be reporting on the new employee defense in a trade secret disclosure lawsuit:   “It wasn’t me, it was Siri.”

Employer Take Away:   What should you as an employer take away from this development?   

I will leave it up to you to decide whether or not IBM has overreacted to this new technology for purposes of its workplace ban.   But your takeaway is that, as with IBM’s information, there can be no price tag placed on the loss of your company’s valuable trade secrets and other proprietary information.  So it is wise to make sure that you continue to do everything possible to minimize data breaches and information disclosure by creating policies and protocols that protect your valuable interests.    And in 2012, you need to make sure those efforts take into account the latest in social media and technology advances.   

It’s not just the rogue employee your company needs to worry about;  for even information inadvertently disclosed is, still, disclosed.

For good and for bad, social media provides those with something to say a quick and easy forum in which to say it.    It also provides a great means for others to respond just as quickly and easily to what has been said.

Last Thursday, I posted about the 3^rd guidance memorandum issued that day by the NLRB’s Acting General Counsel.   Yesterday, my take on the issue (among others’) was referenced in a blog published by Leland Beck, a Washington, D.C. attorney who publishes a very informative blog called the “Federal Regulations Advisor”.   Mr. Beck makes several interesting points in his post, which further highlights the slightly-managed chaos that has been thrust upon us semi-annually since the NLRB’s first “guidance” on this topic was issued last summer.

One interesting question raised in Mr. Beck’s post was whether too much importance has been placed on the NLRB’s “guidance memoranda”.   There is a risk, it is suggested, that readers of the memoranda may incorrectly assume that the Acting General Counsel “speaks for the voting quorum of the NLRB”, and thus has the teeth of an agency rule without having gone through the required rulemaking process.   

I agree generally with this point, but note that we must consider the practical realities here too. Not all issues considered by the NLRB get the celebrity treatment that these social media memoranda have been getting, and the NLRB does not issue “guidance” memoranda on any and all issues.   In fact, when the “guidance” memoranda are replete with terms such as “we found these rules unlawful” and “the Board has long held” and “we concluded” and “the portion of the rule . . . is unlawful”, it is naïve to think that employers will (or should) step back and ignore the “guidance” simply because it was “only” issued by the Acting General Counsel.   The Acting General Counsel did not suggest that he was offering only friendly advice to take or leave, when he concluded in his introductory portion:  

“I hope that this report, with its specific examples of various employer policies and rules, will provide additional guidance in this area.”

So, whether or not these guidance memoranda ultimately will be upheld in their substance, or found to be improper rulemaking in sheep’s clothes, is largely irrelevant, when the lone voice of authority (i.e., a governmental board like the NLRB) continues in the present moment to implicitly threaten companies with very real enforcement proceedings if their employment-based decisions run afoul of “protected concerted activity” rights, in the eyes of the chief legal speaker for the NLRB.   Or if their policies are not as narrowly tailored as the NLRB’s chief legal speaker (and, by the way, prosecuting office) would like.

Employer Take Away:   What should you as an employer take away from this development?   

Many bloggers look at the NLRB’s recent social media “guidance” from slightly different angles, and often with multi-colored glasses.   All pretty much agree, though, that the current status of the NLRB’s “guidance” is problematic for employers, if for no other reason than the fact that this administrative activity still does not provide the finality and certainty that companies look for in their employment law questions.

So this again begs the question:  From your company’s perspective, are you better off tailoring your social media practices and policies to comport as much as possible with the (as of now) lone voice of government guidance?  Or, are you willing to act in a manner that makes the most practical, business sense for your company, with the expectation (and hope) that subsequent activity (by a court or otherwise) may temper the NLRB’s current enthusiasm?   Perhaps there is a way to proceed down both paths.

It’s not just lawyers and bloggers who think the NLRB’s continuing position on social media policies is important.   Apparently, the NLRB itself does too.   So much so, that – just today – the NLRB’s Office of General Counsel issued its third guidance memorandum on social media policies in the workplace.

The first guidance memorandum on August 18, 2011 was focused primarily on adverse employment decisions based on employee social media activity, with a smaller discussion about the scope of social media policies.   The second memorandum on January 24, 2012 also addressed adverse employment action, but contained a more detailed analysis of the do’s and don’ts of workplace policies.  

Today’s third memorandum is devoted exclusively to the NLRB’s updated thoughts on seven employer social media policies on which the agency has recently issued administrative rulings.   Highlights from today’s memorandum:

Impermissibly Overbroad Policy Provisions According To The NLRB

• Prohibiting the release of “confidential information” or “non-public company information” generally, or unless there is a “need to know” to do the job.
• Requiring posts to be “completely accurate and not misleading”.
• Requiring that an employee secure permission from the employer as a condition to engaging in what might be considered “protected activity”.
• Prohibiting generally the posting of photos, music, videos, quotes, and personal information of others without obtaining the owner’s permission, and from using the employer’s logo or trademarks even for non-commercial use.
• Prohibiting “disparaging” or “defamatory” remarks, as well as “offensive, demeaning, abusive or inappropriate remarks” without further edification.
• Requiring that employees think carefully about friending even their co-workers.
• Requiring employees to report “unusual or inappropriate internal social media activity”.
• Prohibiting employees from commenting on pending legal matters.
• Prohibiting topics “that may be considered objectionable or inflammatory”.
• Encouraging employees to resolve concerns by speaking through internal channels, rather than by posting complaints online.
• Prohibiting posts that may “harm the image and integrity of the company”.
• Prohibiting any and all communications to the media, or requiring prior authorization before doing so.

Permissible Policy Provisions According To The NLRB

• Prohibiting disclosure of specific examples of company information that does not relate to the employees themselves (or their terms and conditions of work).
• Requiring employees to respect all copyright and other intellectual property laws.
• Stating that employees should use their best judgment and exercise personal responsibility.
• Prohibiting online “harassment, bullying, discrimination, or retaliation that wouldn’t be permissible in the workplace”.
• Prohibiting posting anything in the employer’s name without the prior authorization of the employer.
• Requiring that employees expressly state that postings about the employer’s products or services are the employee’s own opinions, and not the employer’s position. 

Employer Take Away:   What should you as an employer take away from this development?   

I believe that many of the NLRB’s positions regarding impermissible and overbroad provisions are way over the top, constitute agency overreaching, and will not ultimately hold up in court.   So I offer the usual caveat that we can only get the final word on these issues when the NLRB’s position is appropriately vetted and tested by the judicial system, much like other recent actions of the NLRB have been struck down by courts.

Yet, until someone in a black robe agrees with the “overreaching” contention, the NLRB is currently the only voice of authority in the auditorium.   The common thread that seems to tie all of the NLRB’s statements seems to be the following from today’s memorandum:  “Rules that are ambiguous as to their application to [protected] activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict [protected] rights are unlawful.”

If your company is not yet willing to test the NLRB’s guidance in court, it is best to either eliminate the patently offending provisions, or draft them in a way that makes the impermissible, permissible.

Another one bites the dust

And another one gone, and another one gone

Another one bites the dust

Hey, I’m gonna get you too

Another one bites the dust

As states (and the feds) continue to propose new bills on the issue, the second jurisdiction has now just done away with employer demands for social media passwords and account information.    Just this week, the Illinois legislature passed an amendment to that state’s “Right to Privacy in the Workplace Act,” in a short and sweet new law that: 

• Makes it unlawful for any employer “to request or require any employee or prospective employee to provide any password or other related account information in order to gain access to the . . .  account or profile on a social networking website[.]”
• Makes it unlawful for any employer “to demand access in any manner to an employee’s or prospective employee’s account or profile on a social networking website.”   [Presumably, this prohibition looks to avoid the situation where an employer does not specifically demand a password, but, for example, “requests” that the individual log in to the social media site in front of the employer.]

At the same time, this new Illinois law also makes it expressly clear that: 

• Employers are still permitted to “promulgate and maintain lawful workplace policies governing the use of the employer’s electronic equipment[.]”
• Employers are still permitted to “monitor usage of the employer’s electronic equipment and the employer’s electronic mail without requesting or requiring any employee or prospective employee to provide any password or other related account information[,]”
• Employers are not prohibited from otherwise obtaining information about an employee or prospective employee that is already in the public domain.

The Governor of Illinois is expected to sign the law.

Employer Take Away:   What should you as an employer take away from this development?   

If your jurisdiction hasn’t passed legislation on this issue yet, it will.   So keep watching.    And don’t take the approach that many still do:

Nothing really matters

Anyone can see

Nothing really matters

Nothing really matters to me

Yesterday’s post about protecting your company’s business interests was a good springboard for today’s menu offering.  Here is a really informative article from Monday’s New York Law Journal that was published by one of my colleagues at Cozen O’Connor, Steven Shelton (member of our intellectual property group).  

The premise of his article essentially is that social media in general, and the more active social networking sites in particular, can pose a threat to your company’s trademarks and other intellectual property if the proper precautions are not taken.   One of those threats is “brandjacking”, or the “unauthorized registration of false usernames or account names that comprise or include a company’s brand[.]”   Steve’s article is worth reading, and offers a non-legalese discussion about the existing threats and potential remedies.

Employer Take Away:   What should you as an employer take away from this development?   

It is clear that threats to your company’s valuable intellectual property can come from an outsider who is not affiliated with the company, or even from one of your own employees who (intentionally or unintentionally) engages in social media activity that threatens the sanctity of your brand.    Steve’s article offers some very good advice:

            (1)        Make sure you have sufficiently registered trademarks for your important company brands.

            (2)        Be proactive in obtaining account names that use your important brands.

            (3)        As we’ve also discussed in prior posts, be vigilant in monitoring social networking sites to make sure your business interests are protected.

            (4)        Retain IP counsel when necessary who is also familiar with the “dispute resolution processes of the major social networking sites.”

Alex Trebek:   “To protect valuable trade secrets.”

Mike:   “Give me a good reason why employers should monitor social media activity?”

Trebek:  “Sorry, you didn’t phrase it in the form of a question.”

Mike:   “Ok, what is ‘give me a good reason why employers should monitor social media activity?”

Trebek:   “Sorry, too late.”

But that was the right answer, whether I move on to Final Jeopardy or not.   In fact, we spend a lot of time discussing the perils involved with employers monitoring social media activity.   But there are reasons why employers do want to monitor.

Houston-based specialty retailer Francesca’s Holdings Corporation issued a press release on Monday that it terminated the employment of its Chief Financial Officer – for cause.    According to the release, he was terminated because he “improperly communicated Company information through social media.”  Francesca’s did not identify the exact nature of the company information disclosed, nor did it specify which social media account was used.   It did note that the disclosure was discovered on May 11^th, after which an investigation was immediately commenced by the Board of Directors.

According to the Board’s Chairman:

“Francesca’s has delivered consistent, high quality results for customers and public investors.  We are disappointed by this situation but we expect our executives to comply with all Company policies.”

Employer Take Away:   What should you as an employer take away from this development?   

While you certainly want to make sure you comply with all applicable laws, regulations and rules, your company does have a right to ensure that its legitimate and valuable business interests are protected.   So, if you want to monitor:

• Establish lawful protocols to monitor what is being said about your company, particularly from the microphones held by your own employees; and

• Be crystal clear in your lawful policies and training about what is considered by the company to be protected information, and what cannot be disclosed to outsiders.    It should go without saying by now that your confidential information policy should include references to social media use.

What does it mean to “like” something?   That is one of the next intriguing questions facing us as we roll down the uncharted path of applying traditional activities and claims to the modern social media era.   Webster’s Dictionary defines the verb “like” as “to be pleased with; enjoy” and “to wish” and be “in the mood for”.    Wikipedia adds, specifically with regard to online communities, that it serves to display one’s “personal attraction, acknowledgment or sympathy with the ‘liked’ object.”

I’m not sure that really answers the question of what it means to “like” something.    It’s like when a spouse asks how he or she looks in a new outfit, and you answer with some trepidation:  “Uh, I like it.”   I guess it’s a better answer than “it’s interesting”, but what did you really mean?   And your “I like it” could have dire consequences, the likes of which may be more appropriate for discussion in my firm’s matrimonial blog.

But two recent employment developments in the news highlight the consequences that could arise in this area too.  A Sheriff in Hampton, Virginia recently fired six of his workers when one of them “liked” the Facebook page of an individual running against the Sheriff.   The employees sued, and on April 24^th a federal judge in the Eastern District of Virginia dismissed the lawsuit, holding that the employees were not entitled to free speech protection:  “It is the Court’s conclusion that merely ‘liking’ a Facebook page is insufficient speech to merit constitutional protection.”

Also making the news is a recent discrimination claim filed with the EEOC by a man who alleges that the Library of Congress harassed and then ultimately fired him because his homosexuality did not comport with his supervisor’s views on sexual orientation and religion.    The man’s homosexuality was gleaned only after it was learned that he “liked” a Facebook link to a group that supports gay adoptions. 

It is an interesting concept.    So far, the cases we have seen involving employment decisions based on social media conduct include some actual words being spoken, or some specific activity being conducted.    Here, there are no explicit words or acts, but only a click of a “like” button that prompts the employer’s response.    So what does it really mean to “like” something?    I don’t know.  Is “liking” something akin to substantive speech?   Doesn’t context matter?   We see that an act, statement, and even those annoying list of shorthand acronyms have a very different meaning in the informal social media world than in the “real” world.

What does it mean to “like” something?   So, like, perhaps you are supporting and aligning yourself with the content.   Perhaps you are simply supporting the fact that the person you’re “liking” is doing something out in public.   Or, without even intending to signal approval or disapproval of content, perhaps you are merely “liking” it so that your own Facebook friends can see a particular link, photo, or update on your own page.

Employer Take Away:   What should you as an employer take away from this development?   

I like to think there will be additional contexts in which this “like” issue will arise for your company.   For example, whether an employee is providing an inappropriate endorsement or testimonial under FTC guidelines simply by liking a product or service.   Or, whether an employee violates your no-reference policy simply by liking a former colleague on Facebook.  Or, whether your employee is truly intending to speak substantively by clicking a button referring to a person, place or thing that your company finds objectionable.    I am not yet convinced that a simple “like” can ultimately amount to substantive protected speech or activity, particularly because of its patent ambiguity.   Still, depending on the factual context (and the level of public emotion on the issue), there may be consequences to your company if you simply act based on a “like”.   As always, be careful when acting.

The issues here continue to develop and raise brand new questions.  Which is why I like to monitor and discuss them.