I certainly don’t really care.  My team ended its year on the day we started this new year.   But it was a fun NFL season for this blog, with us being able to use Roy Williams’ marriage proposal and Arian Foster’s hamstring tweet as fodder for important employment law lessons. 

So before I officially move on emotionally to the next sport season, it’s worth finishing this NFL season with a thought on the world’s most popular closing event:  the Superbowl.    Fans of their New Jersey and New England teams obviously have tremendous interest in this weekend’s game, but historical ratings show that the rest of the world cares too.   Much time will be spent this week in person and online trying to make money on the Superbowl.    Online.  There’s the blog hook for today.    Online technology, and social media in particular, have made it much easier for employees to participate in all things Superbowl, and to sit in the office and participate with those outside the four walls of the office.

If you haven’t been asked to join a Superbowl pool yet, it’s more than likely that it’s not because you have no friends at work.   It’ll get to you (more than likely).    But are Superbowl pools legal?   And is there any impact of social media?   Many states exempt “social gambling” from their anti-gambling statutes.   “Social gambling” is generally defined as playing for money in a purely social context, where no player (or other person, such as a host) can make anything more or different than from simply being a player like any other player.   As long as the entire pool is distributed, with nothing taken “off the top”, it is generally ok in many states.

Nevertheless, the issue of office Superbowl pools and social media raise a few noteworthy points:

            1.         Loss of Productivity and Time?   Superbowl blogging and posting, and surfing the ‘Net for all things Superbowl, will take a lot of time.    Time at work, and during working hours.  How much do you want to (or will be able to) control what your employees are doing and checking up on while they are on the (work) clock.

            2.         Can Bobby Come Out To Play?   Office Superbowl pools should be open to everyone, and shouldn’t be a means for violating other workplace policies, such as by harassing or discriminating against people who choose not to join or who are not asked to join.

            3.         Social = Social?   Permissible “social gambling” generally requires some social relationship, meaning that the promotion of your office pool to those outside the company through social media may lead to a pool that includes those with whom there is no bona fide social relationship.  

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

There are bigger pictures that your company should consider when it comes to important issues and policies involving gambling and the impact that social media has had on workplace gambling.  For this week, however, the reality is that this may be just another example of a lawyer turned Superbowl Scrooge, as it is unlikely that the cast of Law & Order will be coming into your establishment merely as a result of this Sunday’s game.  Perhaps you can just relax a little and allow for the morale of your employees to improve with the excitement and buildup of the year’s biggest one-day event.   There are only 5 working days left until the big sports buzz is over, after all.   That is, until pitchers and catchers report in 3 weeks.

The change in calendar year did little to keep the NLRB out of the spotlight.  Multiple lawsuits are still pending in more than one jurisdiction to strike down the NLRB’s proposed rule to require employers to post certain information about employee rights under the National Labor Relations Act, a requirement now pushed for a second time to April 2012.   And, much news has been made of the NLRB’s authority to act without a quorum, and President Obama’s recent “recess appointments” to try to fill the NLRB’s vacant seats.   It seems that, more than ever, the NLRB is mindful of keeping the public informed about what it is doing, and justifying what it is doing.  

Against that backdrop comes a new report issued just this week by the NLRB’s Acting General Counsel.    The new report serves to update the August 18, 2011 report on social media cases and issues pending before the NLRB, about which I previously blogged and provided an analytical framework for employers to use when determining if they could properly take action in the face of employee social media use.  The Acting General Counsel began this new report by stating:

“[T]hese issues and their treatment by the NLRB continue to be a ‘hot topic’ among practitioners, human resources professionals, the media, and the public.  Accordingly, I am issuing this second report on fourteen recent cases that present emerging issues in the context of social media.”

The report is a fairly “user-friendly” read, and I recommend that you devote a few of your leisurely moments to review it.   Four points are worth highlighting:

            1.         Eleven of the cases discussed in the report addressed some form of discipline based on employee social media use.   Of those eleven, the NLRB found in six cases that there was no violation of the employee’s right to engage in “concerted protected activity.”

            2.         Seven of the cases discussed in the report addressed specific language contained in an employer’s social media policy.   Of those seven, six policies were found to be overbroad and unlawful for at least one reason.

            3.         The NLRB emphasizes that employee posts that amount to mere individual griping or venting will not generally rise to the level of “protected concerted activity.”

            4.         The NLRB clarifies that an employee does not engage in “protected concerted activity” if there is no intent to initiate or induce co-workers to engage in group action, regardless of whether co-workers did respond or join in a particular discussion.

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

It’s almost like beating a dead horse:  The law (and the NLRB’s interpretation of the law) continues to change rapidly, and you need to stay abreast of these continuing developments.   In particular, the two questions you must continue to ask yourself and the people who make employment-related decisions in your company are:   (1)  What practices should we create and implement when it comes to potential discipline of employees who engage in social media activity that is deemed by the company to be inappropriate?  (2)  How can we draft (and enforce) an appropriate social media policy to minimize a potential violation of the law?   We will continue to monitor these developments, and assist you with answering those questions.

What would you do if your employee continued to use your company’s Twitter account after he stopped working for you?

What if your (former) employee claimed that he, not your company, actually owned the rights to the Twitter followers?

Ever thought about it?

I have posted several times about how social media has not created new causes of action, but rather has provided a new application for traditional claims.  One of the areas that I surmised would develop in time was the interplay between social media and post-employment competition and trade secret rights.  According to two new decisions, that time has apparently come.

In PhoneDog v. Kravitz (Northern District of California), the company gave its employee (Kravitz) use of a Twitter account as part of his employment.  Kravitz tweeted information to promote the company’s services, and generated approximately 17,000 followers.  Kravitz left the company, and, while he changed the account “handle”, he continued to use the same account to tweet to the same followers.  PhoneDog sued Kravitz for continuing to use the Twitter account, claiming that the “compilation of subscribers and the password used to access the account” constituted company trade secrets.   Valuing each of the 17,000 followers at $2.50, the company sought damages of $340,000 for “stealing” each of those followers for 8 months. 

The court denied Kravitz’s request for immediate dismissal of the entire case, finding that the complaint sufficiently alleged (for initial, liberal allegation purposes) a trade secret/misappropriation claim, and, thus, that the parties would have to further develop their positions through discovery.  The court also refused to dismiss the company’s claim that the Twitter account (and not just the “handle”) constituted company property and should have been surrendered at termination.

Similar issues were raised in Eagle v. Edcomm, Inc. (Eastern District of Pennsylvania), though this time involving LinkedIn.   Dr. Eagle had a Ph.D in communication and psychology, and co-founded Edcomm, Inc. to provide financial and related training services.  Eagle established a LinkedIn account (with the assistance of company administration, who knew the password), which she used in part to promote the company’s services, as well as to develop her professional reputation and network.  After the company was purchased by a third party, Eagle and others were terminated, and the company later changed Eagle’s password and her account profile to display the name and photo of the company’s new chief executive officer. 

Eagle sued the company, alleging violations of the Computer Fraud and Abuse Act, and identity misappropriation/theft.   The company asserted a counterclaim, arguing that the LinkedIn account was created using the company’s e-mail addresses and substantive templates to provide certain information, which rendered the accounts company property.  In its decision on Eagle’s request for the immediate dismissal of the counterclaim, the court ruled that certain company claims could advance.  Of note, the court found that the company is entitled to develop through discovery that it was its own staff that “developed the [LinkedIn] accounts and maintained the connections, which are the route through which” the company has its relationships with client contacts to provide services.    In the end, as with the PhoneDog case, the court was not willing to make a determination as to ownership of the social media account at the early stages of the case.

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

There are a few issues that were not addressed by both of these inception-stage decisions, including the extent to which the account’s user agreements should play a role in determining appropriate expectations and true ownership rights between employer and employee.    Nevertheless, your company should consider creating policies and agreements that address, not only the substance of what is posted or done through social media, but also the important ownership and access issues that may arise during, and particularly after, an employee’s employment.   That is especially true for any employees whose job duties include engaging in social media activities on behalf of your company.

Back in 2011 (I say it like that because New Year’s already seems like a distant memory), I posted on November 17^th and August 26^th about continuing developments in the area of the discoverability of an individual’s social networking posts in the context of a lawsuit.  Two new cases that just came out of Pennsylvania continue the discourse.

First, the Court of Common Pleas decision in Largent v. Reed maintained the pro-disclosure trend.   There, plaintiff sued for injuries allegedly caused by defendant in an auto accident. However, as circumstances have it in these cases, plaintiff’s Facebook page raised questions about the true extent of her injuries, for example describing how plaintiff went to the gym and otherwise engaged in daily life activities in a manner that seemed to belie her injury claims in the lawsuit.   Re-affirming the principle contained in other decisions that Facebook posts do not rise to the level of a “general privacy privilege”, the court in Largent permitted defendant to probe plaintiff’s Facebook account as “one of the least burdensome ways to conduct discovery.”

But, then, another Judge in the Court of Common Pleas seemed to start tipping the scales back in favor of the social media user.   Thus, in Martin v. Allstate, plaintiff claimed that she suffered personal injuries after being struck by a vehicle, and the defendant sought to compel the production of plaintiff’s Facebook password.   According to reports, however, defendant’s attorneys never asked specific questions at the deposition that would elicit information on plaintiff’s particular usage of Facebook, or the nature (or frequency) of the information she posted.   Plaintiff argued in court that the defendant was merely seeking to perform “an untargeted search” of the social networking site.   The court in Martin agreed, and refused to provide the requested Facebook access.

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

On the surface, it could simply be a matter of where one court taketh, another court giveth.  Looking deeper, though, there is a common denominator that continues to emerge here.   Courts seem swayed by the equities and are willing to look past claims of “privacy” and “embarrassment” in the social networking arena, but only if there is some showing of need and relevance to the actual issues in the particular case.

While these discovery cases have largely arisen in the personal injury context, the principles, again, should resonate equally in employment-related disputes.   In other words, any request by your attorney in the context of a lawsuit with your employee (a written request or a request at a deposition) should be focused and narrowly-crafted to show a Judge ultimately that you are not simply engaging in the proverbial fishing expedition.   The request should also be based on a sufficient foundation, such as prior inquiries made as to the nature of the individual’s social networking activities, the types of information and discussions the individual has on his or her page, and the reason it is expected that the informal social media statements may likely be incongruous with the more “formal” position your employee takes in litigation.

While we were all enjoying the days leading up to the New Year, the NLRB (somewhat) quietly backtracked again on its deadline for virtually all employers to comply with its proposed posting rule.

You may recall that I wrote on October 13, 2011 about how the NLRB had extended the deadline for compliance from November 14^th to January 31, 2012, with the Board explaining then that the extension was done “to allow for further education and outreach.”   No real mention of the fact that there also just happens to be three separate lawsuits pending in which courts in the District of Columbia and South Carolina are being asked to enjoin enforcement and to strike down the rule as being beyond the NLRB’s rule-making jurisdiction.

Right before the holiday, the NLRB issued another press release announcing that it “has agreed to postpone the effective date of its employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule.”   Presumably, there is no longer a need for extended “education and outreach,” and there is now an acknowledgement that the pending legal proceedings will have an impact – one way or the other – on the extent to which employers can be forced to expressly advise their employees in writing of the right to unionize and engage in protected concerted activity under the National Labor Relations Act.

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

The new (current) deadline for complying with the NLRB’s posting rule is April 30, 2012.    It is unclear whether courts will strike down all or part of the Board’s rule, which is clearly a pro-employee initiative designed to further force businesses to educate their workforce about what rights employees may have.    For now, hold off on obtaining the new posters, but keep some wall space available in your cafeterias and kitchenettes.    There will be more to this story long before the next deadline in April.

Remember when Bill Clinton coined the phrase “It’s the economy, stupid” during his successful 1992 presidential campaign?   Well, while the economy remains a centerpiece of this year’s political campaigns, I am ready to channel my inner-Seinfeld and add a new phrase to the pop culture lexicon:   “It’s the relationships, stupid.”

Social media is a great thing.   Technology is a great thing.   Both have revolutionized our lives in ways never before imagined, and, at the same time, have dramatically impacted the relations between employer and employee to an extent that will never go away.  And, we have seen many instances in 2011 where employers have been told to toe the fine lines and manage the interplay between social media and employee relations.  

For example, reaping the benefits of the World Wide Web as a source of information on applicants, but making sure you don’t learn “too much information.”   Maintaining your right to monitor what goes on in your workplace and on your working time, but being mindful of your employees’ privacy rights.   And, disciplining your employees for disparaging statements, online conduct, or disclosure of confidential information, while ensuring you don’t infringe on protected concerted activity.  The rules and opinions will continue to evolve, and most likely repeatedly change, as we move to 2012 and beyond.

But let’s turn off the technology for a moment, and ask why your company is (and will be) ultimately successful.   Let’s also ask why your company may be able to successfully avoid legal pitfalls and litigation.  The answer:   It’s the relationships, stupid.   I’ve often said that the definition of a “plaintiff” is a “pissed-off employee”.   The more you communicate with your employees, and the more your relationships with your employees are valued within the bounds of existing law, the more successful your business will be and the more likely it is that you can avoid employment disputes.   Valuing, being responsive to, and maintaining your inter-personal relationships with your employees, customers, clients, vendors, and business partners will still prove to be the most important precursor to a successful bottom line.

Employer Take Away:   So, what is the takeaway from 2011?   What should you as an employer take away from this development?   The rapid explosion of social media, and its impact on the workplace, will never take away from the value of true inter-personal relationships.  As great as today’s advances are, it doesn’t always have to be about apps, status updates, and mass communication from behind a keyboard.    It also doesn’t mean that we need to give into technology at the expense of our interpersonal relationships, and the face-to-face communications that still must take place.

Individually, we are no different than we are professionally.   We spend so much time connecting to someone who is not in front of us, that it’s easy to ignore what is right in front of us.   We are so worried about tomorrow and next week, that the happy, meaningful and productive parts of today go unnoticed.  We are so obsessed with typing to the world in words and pictures where we are and what we’re doing, that we’re not at all focused on precisely where we are, what we’re doing, and who we’re doing it with.   To me, we are successful – professionally and individually – through the relationships right in front of us.

So maybe for this holiday season, we can find even an hour to put down the BlackBerry and smart phones, get to that e-mail or text in a little while, and keep the terrific picture and status update we were about to post in our own heads for now.   Enjoy the moment right in front of us, as it will always be about those relationships, stupid.

I greatly appreciate the time you have taken to read my blog this year, and I hope that I have provided you with some useful, informative, and perhaps occasionally entertaining insights on the interaction between social media and employment law.   I look forward to continuing that effort in 2012.  

I wish you and your families a very healthy, happy and successful New Year.

This is the time of year to anxiously look forward to all that is anticipated to come in 2012.  But it is also the time to look back at all that has happened in 2011.    Rather than simply give you links to all of the stimulating blog entries from the year that has passed (I’m confident you know how to search archives on this blog), I thought I would instead do the “2011 Year In Review” in song.   So, if you know the tune to “The Twelve Days of Christmas”, please close your office door and sing along to this reminder of the many 2011 social media concepts that I leave with you for the holidays:

The 1^st social media

Reminder left for me

Beware of the N-L-R-B

The 2^nd social media

Reminder left for me

An older workforce blogging

And beware of the N-L-R-B

The 3^rd social media

Reminder left for me

FTC endorsements

Older workers blogging

And beware of the N-L-R-B

The 4^th social media

Reminder left for me

Tracking wage and hours

FTC endorsements

Older workers blogging

And beware of the N-L-R-B

The 5^th social media

Reminder left for me

Protected, concerted deeds!

   (dramatic pause)

Tracking wage and hours

FTC

Older workers post

And beware of the N-L-R-B

The 6^th social media

Reminder left for me

Liberal discovery

Protected, concerted deeds!

Tracking wage and hours

FTC

Older workers post

And beware of the N-L-R-B

The 7^th social media

Reminder left for me

Still Privacy’s important

Liberal discovery

Protected, concerted deeds!

Tracking wage and hours

FTC

Older workers post

And beware of the N-L-R-B

The 8^th social media

Reminder left for me

Textual harassment

Privacy’s important

Liberal discovery

Protected, concerted deeds!

Tracking wage and hours

FTC

Older workers post

And beware of the N-L-R-B

The 9^th social media

Reminder left for me

He called his boss a scumbag?

Textual harassment

Privacy’s important

Liberal discovery

Protected, concerted deeds!

Tracking wage and hours

FTC

Older workers post

And beware of the N-L-R-B

The 10^th social media

Reminder left for me

Too much information

He can call his boss a scumbag?

Textual harassment

Privacy’s still out there

Courts allow discovery

Protected, concerted deeds!

Track their wage and hours

FTC

Older workers post

And beware of the N-L-R-B

The 11^th social media

Reminder left for me

Religious accommodation

Too much information

He called his boss a what??

Textual harassment

Privacy’s still out there

Courts allow discovery

Protected, concerted deeds!

Track their wage and hours

FTC

Older workers post

And beware of the N-L-R-B

The 12^th social media

Reminder left for me

Manage expectations

Religious accommodation

But too much information

He can call me a scumbag?

Textual harassment

Still some rights to privacy

Courts allow discovery

Protected, concerted deeds!

Track their wage and hours

FTC

Older workers post

And beware of the N-L-R-B!

You’ve all heard the adage that there are only six degrees of separation between any two people in the world.   There have been various plays on that small world phenomenon, such as “six degrees of Kevin Bacon”, where trivia buffs try to link members of the Hollywood film industry to Kevin Bacon films in six steps or less.    Facebook, in conjunction with the Universita degli Studi di Milano, just issued a fascinating study that reveals empirically that the separation between people has in fact decreased as Facebook has grown.

The study analyzed 721 million active Facebook users, which is noted to be more than 10% of the global population, and the 69 billion “friends” of those users.  There were two primary findings.   First, the study found that the degrees of separation between social networking users is currently less than the commonly-cited six degrees:

“We found that six degrees actually overstates the number of links between typical pairs of users:  While 99.6% of all pairs of users are connected by paths with 5 degrees (6 hops), 92% are connected by only four degrees (5 hops).  And as Facebook has grown over the years, representing an even larger fraction of the global population, it has become steadily more connected.  The average distance in 2008 was 5.28 hops, while now it is 4.74.”

The second primary finding in the study is that, ironically, the “world gets even smaller” when the analysis is limited to a single country, where the separation between social networking users is only 3 degrees.  In fact, friends of a user tend to be of the same age and reside in the same country.

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

It is sort of like your HR people need to be psychologists and sociologists when it comes to human (employee) behavior.  This latest empirical study shows very clearly that humans (employees) have a tremendous network of people with whom they communicate even if they have never met them.   Perhaps more importantly, employees are spending a lot more of their time communicating with their “friends”.   And they’re spending that time at work.

Given this, and to ensure compliance with the law, it is important for you to continue to maintain practices and policies that make sense in today’s world, and to recognize the good and the perils of employee relationships and interactions.   In the meantime, enjoy your close network of family and friends this Thanksgiving weekend.