Tag Archives: social media policy

Newest Privacy Lawsuit? Employers Starting To Demand Employee Facebook Passwords

Stories about the need for social media policies abound across the Internet. Whether it’s to protect lawyers from accidental jury tampering or to protect firms from their own associates’ blogs, social media policies—comprehensive and in writing—are crucial for the modern company.

Especially when you consider, for example, online murmuring about recent requests by employers for the username and password information of all their potential employees.

The idea of violating a job applicant’s privacy seems so blatantly wrong, you’d think these stories must be false, right?

Unfortunately, no. The Associated Press published this piece, which serves—in the least—as a warning to professionals about a scary new employment trend:

“Back in 2010, Robert Collins was returning to his job as a security guard at the Maryland Department of Public Safety and Correctional Services after taking a leave following his mother’s death. During a reinstatement interview, he was asked for his log-in and password, purportedly so the agency could check for any gang affiliations. He was stunned by the request but complied. ‘I needed my job to feed my family. I had to,’ he recalled.”

The risk of privacy violations in this manner proved so real that even Facebook, through its chief privacy officer Erin Egan, issued a statement regarding the practice.

“In recent months, we’ve seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles or private information. This practice undermines the privacy expectations and the security of both the user and the user’s friends. It also potentially exposes the employer who seeks this access to unanticipated legal liability.”

The most alarming of these practices is the reported incidences of employers asking prospective or actual employees to reveal their passwords. If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends. We have worked really hard at Facebook to give you the tools to control who sees your information.”

Obviously, Egan is not amused. And, if employers are not careful with their social media policy, Facebook might even throw a few lawsuits their way.

The tech community as a whole is also up in arms against this recent, unfortunate trend.

Charles Cooper for CNET recently wrote an article titled, “Fork over your Facebook log-on or you don’t get hired. What?” in which he states:

“Especially in the current economy, it’s the ultimate nightmare scenario: Choose principle, or choose your ability to put food on the family table. You can’t have both. That’s the sort of enraging choice politicians, technologists, and free-speech advocates find easy to rally against. Remove this from the Facebook context and it simply looks like an unfair (and counterproductive) hiring practice. Something along the lines of: ‘Gee, we’d like to offer you this job, but before we do, we need you to fill out a few forms so that we can look at your tax records for the last three years.’ Or some such absurd quid pro quo. Lawsuit, anybody?”

Congressmen and lawyers are cleverly harnessing this trend as an opportunity for increased action.

Maryland State Senator Ronald N. Young has already proposed a couple of social-network privacy bills, including one targeted at employers and another at colleges and universities.

“We’ve even heard that some universities hired people to friend (student athletes) to follow what they read and write on Facebook,” Young said to Cooper for CNET. “It’s unconstitutional. It’s like me applying for a job, and the employer saying, ‘I’d like to tap your phone and listen to all your calls and monitor your mail.’”

Lawyers, for their part, should become equally proactive.

Because the issue is so contentious and, apparently, widespread, it’s important that law firm managers advise their clients to create a social media policy and then review its content. Law firms should ensure this policy includes appropriate hiring and firing provisos.

This advice could be circulated through a memorandum or even via casual conversation. But, law firms should feel ethically responsible for the legal actions of their clients concerning social media.

In addition, law firms should revise their own social media policies to target hiring and firing practices. No associate should feel as though he is being monitored or his activity restricted on the Internet.

Nevertheless, law firms should guard themselves from overexposure on the Web. Social media can be an asset to business development, as well as a liability.

The American Bar Association recently published, “How to Create a Law Firm Social Media Policy,” on its website here. More specifically, your firm should learn the rules for disciplining and terminating employees for their social media posts.

In fact, even in non-unionized workplaces the National Labor Relations Board’s (NLRB) recently decided that disciplining or terminating an employee who engages in concerted, protected activity on sites such as Facebook or Twitter is unlawful.

What does this mean for employers? Even the most well-drafted social media policies may violate the NLRA if not kept up-to-date.

So, sign up your firm for The Center For Competitive Management (C4CM)’s social media courses, including this one: Social Media, Workplace Policies, and Violations Under Section 7 of the NLRA.

Or, this one: Developing a Social Media Policy: Clear Guidelines to Prevent or Reduce Employment-Related Problems.

However you decide to broach the issue, the time to do so is now. The reports of abuse—and subsequent legal action—are both real and plentiful.

In an uncertain economy, this is a lawsuit that no employer can afford. And one that no employee can afford to ignore.



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Is Checking Facebook At Work A Federal Crime? Where Your Firm Should Weigh In…

Image: chanpipat / FreeDigitalPhotos.net

If checking Facebook at work were a federal crime, the government may as well outlaw office gossip and coffee breaks.

These days, Congress and corporate America seems to be pigeonholing the Internet as a workplace tool—and nothing more. But, for gamers, social media-istas, and chronic procrastinators, this determination is like being stuck between a rock and a hard-drive.

Why can’t the Internet be both a business tool and a conduit for leisure?

Mostly because the government would love to regulate the suspicious and potential dangerous online activities of its population, the way it can’t personal pleasure or freedom.

Yesterday, Chief Judge Alex Kozinski, in an opinion of the U.S. Court of Appeals for the Ninth Circuit, decided the government had gone too far in interpreting an anti-hacking statute called the Computer Fraud and Abuse Act (CFAA).

According to Judge Kozinski’s opinion, no, it is not a federal crime to check facebook at work—despite workplace policy. And, no, it is not a federal crime to gchat with friends, play online games, shop, or watch sports highlights in violation of employer policy.

 “While it’s unlikely that you’ll be prosecuted for watching Reason.TV on your work computer, you could be. Employers wanting to rid themselves of troublesome employees without following proper procedures could threaten to report them to the FBI unless they quit,” explained Judge Kozinski.

“Ubiquitous, seldom-prosecuted crimes invite arbitrary and discriminatory enforcement.”

The WSJ Law Blog points out that this ruling puts the Ninth Circuit at odds with the Fifth, Seventh,, and 11th circuits, which adopted a broader view of the law’s coverage.

“Were we to adopt the government’s proposed interpretation, millions of unsuspecting individuals would find that they are engaging in criminal conduct,” stressed Judge Kozinski.

As such, Judge Kozinski asked the three dissenting courts to reconsider.

“These courts looked only at the culpable behavior of the defendants before them, and failed to consider the effect on millions of ordinary citizens caused by the statute’s unitary definition of ‘exceeds authorized access.’ They therefore failed to apply the long-standing principle that we must construe ambiguous criminal statutes narrowly so as to avoid ‘making criminal law in Congress’s stead,’” wrote Judge Kozinski in his opinion.

“We therefore respectfully decline to follow our sister circuits and urge them to reconsider instead.”

Just as courts ought to reconsider their rulings, law firms should reconsider their related workplace policies.

In light of the potentially huge consequences for violating workplace social media policies (at least for federal crimes in the Fifth, Seventh, and 11th circuits), what kind of message are you sending associates?

Is your firm culture so severe that it would like to see its employees prosecuted for procrastinating online?

A study by American Express showed 39 percent of younger workers won’t even consider working for a company that blocks Facebook, according to Kevin O’Keefe’s points for “Why law firms need to stop blocking the use of social media,” on his site Real Lawyers Have Blogs. Because Facebook is now the primary communication and networking tool for many young professionals, why block its use and alienate this group?

Whatever your choice in language and limitations in a workplace social media policy, law firms should remember—in the least—to create one.

In 2011, over 100 employers were accused of improper social media practices or policies, according to The Center For Competitive Management. If not to protect your employees from strict law enforcement, protect your firm.

If you’re unsure where to start, try research and a round-table discussion with a mix of junior and senior attorneys. Along with administrators, ask the group to create a social media policy that reflects their own opinions on the matter. Most likely, your employees will know best what types of social media uses actually constitute abuses.

A round-table discussion will also ensure your employees take the time to read workplace policy; after all, they helped write it.

Finally, if you’re still stuck, attend C4CM’s course on audio CD, Social Media at Work: Bulletproof Policies that Minimize Legal and Financial Risks.


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More Lawyers Blogging As Social Media Gains Ground Within Law Sector, Survey Says

If you’re reading this blog, you’re not alone.

The legal profession, it turns out, is becoming inundated with law blogs. It only takes a quick Google search to realize all your major competitors have a blog for their firm.

According to a recently-released survey of social media in the legal sector by LexisNexis and Vizibility, 81 percent of survey participants reporting they already use social media marketing tools and another 10.1 percent saying they plan to deploy social media marketing elements within six months.

With so much interest and activity flurries within the legal blogging world, you may be surprised to find that this new industry is still fairly unstructured.

When asked, “Does your firm have a social media policy or guidelines for social media,” however, only 61.2 percent of legal professionals responded yes.

And, a small niche of lawyers continues to rebuff smartphones in 2011. At least 12 percent do not use a Blackberry, iPhone, Android, or other smartphone in their business, including scanning QR codes.

So, to those 30.8 percent of legal professionals who find social media to be extremely important to their firm’s overall marketing strategy (and the 48.8 percent who admit it’s somewhat important), here are three ways to propel your firm forward into the world wide web of successful social media users and profiteers.

1. Formulate a strategy

It’s a legitimate and smart step toward success to start a blog for your law firm. However, what next?

Many firms are stymied when it comes to creating a social media strategy. These days, companies (like this one) are available to walk you through the process.

Or, for “do it yourself” firms, come up with a game plan and series of goals for your social media use. Is the primary purpose recruitment? If so, gear your law firm articles toward law school students. Have your first-year associates control the content to keep it pertinent to the generation.

Is the main goal of your blog to attract new clients? If so, perhaps a managing partner or firm administrator should be the major contributor. Write about key case wins and other newsworthy successes. Add interesting profiles and photos of your most promising attorneys to garner attention from the outside world seeking counsel.

Allow third-parties to subscribe to your blog or newsletter, and aim its content toward business ideas or legal developments that would be of interest to your prospective clients and also ones that will show off your firm’s expertise.

2. Implement guidelines

Not only should your firm create a social media strategy, but it should also write a social media policy.

Social media policies should explain to associates expectations for their participation on sites, such as LinkedIn, Facebook, or Twitter.

What is your stance on associates having personal blogs? There’s nothing to stop free speech in this country, but you can certainly address for associates how your firm would like its image to be portrayed on the Internet.

3. Encourage associates to use social media

As the aforementioned survey details, social media has infiltrated the legal profession. Used as a marketing strategy, firms benefit from having their name saturating the digital world.

Encourage your associates to belong to these networking sites. Or, to blog about their experience with the firm. The Internet is undoubtedly the first place that prospective clients and new employees will look to be introduced to your firm.

Robert Ambrogi, legal blogger, writes about the trend on LawSites, “For readers of blogs, there is a coming feast of abundance. For writers of blogs, the game is on to produce quality, thoughtful posts that will keep your blog from drowning.”

Don’t keep your acclaim or successes a secret. If your firm is part of the 19 percent who have yet to use social media as a marketing tool, it’s not too late to start today.


Attend one of the Center For Competitive Management’s courses on social media, including “Developing a Social Media Policy: Clear Guidelines to Prevent or Reduce Employment-Related Problems.”

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Set Up Strong Social Media Policies, Now!

Have you ever stopped to wonder why Social Media-related cases hardly ever wind up in court?  Because, notes Digital workplace blogger Christopher Leh (“Workplace Blog”), with all the shifting rules and applications, it’s hard to keep up.  Besides, “nobody wants to be made an example of”—this, the wry observation of lawyer and blogger Bradley Shear.

So, thinking ahead, what are some of the ways in which you can protect your client or your firm?  You need to implement a multi-layered, foolproof social media policy, and you need to enforce it.

Along those lines, Leh details a variety of legal schools-of-thought from which to approach this “inoculation” against possible litigation.

These include:

Equal Employment Law – Be careful to steer your employees clear of any practices which might be construed as harassment in any form, or in direct violation of The Americans with Disabilities Act, the Age Discrimination in Employment Act or the Genetic Information Non-discrimination Act.  Also be aware of the state laws which fall into this category; and

The Fair Credit Reporting Act – To illustrate how a company or firm might be placed in liability, Leh brings up a situation where a would-be employer refuses to hire an applicant after using a mobile phone to gather credit information on the candidate. If this is done without first asking the job candidate’s permission or providing the proper notification, it puts the business or firm in jeopardy.

The employer (or you) will already likely have workplace polices in place which touch on ethical practices, as well as to avoid discrimination, harassment, and retaliation and which define intellectual property, among other parameters.  A good social media policy should be in sync with such protocols.

You should also identify what sort of social media forum you are defining while setting up the policy. For instance, which practices relate to chat rooms, forums, bulletin boards, social network blogs (Facebook, Twitter, etc.), and which to the use of YouTube and text messaging. Be exhaustive and detailed.  Suggestion: if you’re not yet conversant with all the aspects of social media, don’t hesitate to ask a younger colleague to “catch you up”.

If you, the administrator (or the employer), are sponsoring certain types of social media, set out a “mission statement” with rules as to what you are hoping to have your employees accomplish. For instance, do you want them to funnel information, create excitement, pass on useful data and add value? Put this in writing.

Speak, also, to what you don’t want your employees to do, such as sharing trade secrets or confidential material.  Again, be explicit so as to not leave any room for doubt.   For an in-depth treatise of how to enhance the way your workplace uses social media technology, see the “Digital Workplace Blog” post.


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Is Getting Your Firm To Implement A Social Media Policy Like Pulling Teeth? Tell Them This: Facebook, MySpace, Twitter Now Permisable In Court.

It doesn’t matter how routine the act of teeth brushing should be, parents are still forced to ask their children the same question every night.

As firm administrator, it may be uncomfortable to continually remind office employees to refrain from certain ill-begotten behaviors, but, according to recent legal developments, repetitive advice on social media policies and privacy is still necessary.  

“Do you have any posts on Facebook, Twitter, or MySpace, for example, that could serve as incriminating evidence?”

Once again, attorneys should remember to warn their clients that privacy settings do not necessarily reflect privacy law.

For example, personal Injury suits are especially vulnerable to invasive discovery requests for social media information.

In Romano v. Steelcase, Inc., the court granted the defendant’s request for full access to the plaintiff’s “current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information.” The defense aimed to use photographs, wall posts, and other pages to prove the defendant lived a happy, active lifestyle despite her injuries and her claims.

The Wall Street Journal Law Blog and The Daily Business Review pointed out that, in April, Facebook and MySpace account information was used to deny a divorcee alimony payments after she claimed a car accident physically prevented her from working (online photos and posts proved this was, in fact, not true).

Firm employees should be equally cognizant that personal blog sites and online networking mediums can make up—in legal disputes—a discoverable, public profile.

Just this year a court case was settled between a Connecticut ambulance company, and The National Labor Relations Board and Dawnmarie Souza, who was fired for making derogatory remarks about her employer on Facebook.

The financial terms of the settlement were not disclosed. However, surprisingly, the ambulance company voluntarily revised its Internet use policies regarding blogging and social media to make them more lenient. The company now has an Internet policy that permits its employees to make candid remarks and even disparaging ones about their work.

Law firms, of all places, should respect the privacy and first amendment rights of its employees.

Nevertheless, there are ways your firm can try to hire tactful and, say, more non-controversial associates. But, to do this, firms must focus investigations on the social media postings and online public profiles of its employees during the interview process, instead of first-year performance reviews.

Once associates are hired, it’s difficult (and illegal) to deny them their first amendment rights. So, implement a social media policy that clearly explains your expectations for digitally public, post-work discussions.

Finally, survey your employees—get feedback. If your employees feel they have no secure medium at the firm for constructive criticism, they will certainly seek an outlet elsewhere, likely a more public and litigious one. 

From your Twitter feed, it’s evident you’ve brushed your teeth. Now, how bright, shiny, and sensitive is your new social media policy?


For more information, attend C4CM’s course, “Social Media Policy Dos and Don’ts: Employees, Networking Sites and the Law.”

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