California Employment Law Report : Los Angeles Employment Lawyer & Attorney : Anthony Zaller Law Firm : California Employment Law Report

I like the UFC’s approach to social media – reward its fighters with bonuses (totaling $240,000 per year) for having the most twitter followers and the most creative tweets. Is this a model a lot of employers could use in their workplace? Absolutely. Unless you find yourself with the few who are still wondering what Twitter is, it is obvious that social networking is here to stay and companies need to figure out a way to make it a productive part of their business. The model also gives the right message to employees – that they are responsible individuals who will use social media appropriately to help the company build its brand. This is a much better approach than telling employees about they cannot do with social media, which is what most companies’ policies do. By warning employees about all of the negative implications for them in using social media, it stifles potential branding opportunities that could exist for the company. And it is already stating the obvious.

If I were running a company, I would want my employees actively using their personal social media accounts to promote specials and new products. It is great that there are tools now available to track the success rate and to give incentives to employees who generate the most buzz. I can already hear other lawyers out there grumbling that this is a bad way to go, and that the company could find itself facing a lot of liability for what employees say on social networks. Every time an employee answers the phone they could create liability for a company, but companies still trust their employees to talk with vendors and customers. The game has changed, time to start communicating with customers where they are listening, and don’t let your policies hinder this.

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I recently had the opportunity to interview Guy Kawasaki about his New York Times best selling book Enchantment.  I like to think of the interview as an extra chapter to Enchantment specifically for business owners and human resource managers about how to effectively manage employees.  We spoke about the following topics:

• HR departments should be evangelists, not cops. 
• HR needs to embrace social media.  A company should even be suspicious of an employee who does not have a Facebook page. 
• How to recruit and retain great employees.  Hint: It is not about the money.

You can listen to the interview here, or through iTunes at the California Employment Law Podcast. 

My review of Enchantment can be read here. 

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Apple, Virgin America, 1965 Ford Mustang, and Mike Rowe. These are examples of Guy Kawasaki’s idea of Enchantment. In his new book he sets out to help readers understand what enchantment is in order to strive to be enchanting. Some have called it an update of How To Win Friends And Influence People for 2011.

Here are the ideas that caused me to dog ear the pages they were on and stood out for me:

• To be likable, you need to find shared passions with others. To do this you need to do your homework, but it is easier today than ever to do so thanks to Google. Long gone are the days of reviewing back issues of newspapers to find out about people.
• On launching a successful venture: “Perhaps [most presentations achieve] antienchantment, because people leave less intrigued than when they knew only rumors. Enchanting launches are more than press releases, data dumps, one-sided assertions, and boring sales pitches. They captivate people’s interest and imagination by telling a compelling story.”
• Tell personal stories when conveying ideas. They do not need to be “epic” stories.
• Marketing is turned upside down post-Internet - people depend on opinions of their friends and casual acquaintances more than “experts.”
• Provide social proof. If everyone else sees other people doing it, then it must be ok.
• Find something you agree with an opponent with before entering into negotiations. Small talk can often establish items in common, which will help lead to a successful resolution.
• Embrace technology - especially social media.
• Tell recruits for a company that you want them, and repeat often - even when they are employees.
• Learn how to resist enchantment so that you are not enchanted by someone who does not have your best interest in mind.

It is also important to note about what is missing from the book: a chapter on price. As Guy puts it, “It is not about the money.” The book is a good reminder for business owners, human resource managers, and employees alike about what it takes to be successful today. Guy explains in more detail about what it takes to be a successful HR manager or have a successful HR department in my interview with him (or click here to listen on iTunes).

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This week the internet is buzzing about a waitress who was fired for making disparaging comments on Facebook about a customer.  It was inevitable, and if employers have not realized it yet, this story should bring the point home that social networking is yet another issue employers need to take a proactive step in managing.  This is also a wake up call for employment lawyers who have neglected to come up to speed on the new issues social networking present in the employment context. 

In California, a court has ruled that postings so social networking sites are not private (click here for post).  So while it would be difficult for an employee to have a claim for violation of privacy, employers should consider what they can and cannot do regarding information they learn about employees on the internet as well as conducting background checks on the internet. Some employers have even gone as far as asking prospective employees for their login information for social networking sites as part of the interview process. 

The lesson:

Social networking sites are here to stay.  It is time for employers to manage this issue by learning what they can legally do to protect the company's interest on the Internet.  Employees and individuals have to realize that the information posted on the Internet is usually discoverable by everyone - it is not only a conversation between friends. 

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Yes, you are still reading the California Employment Law Report and not a tech blog.  But since social networking, privacy and how these issues are permeating the workplace, I wanted to pass this New York Times article along to readers that describes all of the different privacy settings in Facebook. 

If you think employers are having a difficult time trying to manage this "new" technology, the article notes that Facebook's privacy policy has increased from having 1,004 words in 2005 to over 5,800 words in 2010. 

It is an interesting read and can be helpful to discover the types of privacy issues that may arise in the employment context.  Likewise, courts are just beginning to rule on these issues, as a California court held last year that postings on MySpace.com are not confidential. 

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Daniel Schwartz at the Connecticut Employment Law Blog writes about whether or not employment lawyers who advise their clients on social networking policies need to use social networking. I’ve writing on this topic before, but as the Internet becomes more and more dominate in everyday life, Daniel prompted me to revisit the issue. 

While I do not think lawyers need to be IT experts, we all should have a working knowledge of technology, the Internet, social networking sites, and new developing technologies. Technology and the law are becoming so intertwined that I imagine that this will be a component of the MCLE requirement for lawyers within the next 10 years.

Lawyers need to have a working knowledge of technology for a number of reasons. First, IT issues predominate many discovery issues in litigation – and there is a wealth of IT information available through discovery if the attorney has an understanding of what type of information is recorded and how to refer to that information to get it. Second, if a lawyer is advising clients on social networking policies, the lawyer needs to be familiar with the different web sites available and generally how they work. It would, needless to say, be embarrassing to not at least be familiar with some of the more common technical terms, so when advising a client the lawyer does not refer to a “website number”.

Finally, there is no excuse to at least create an account and look around Twitter, Facebook, or LinkedIn – its free and it could be a good excuse to have your son or daughter teach you something. Here is a great list of some of the most used social networking sites one could start with.
 

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The City of Bozeman, Montana asked job applicants to provide their user names and login information to common social networking sites on their job applications. As you may expect, this has caused a major uproar from privacy groups.

Just over one-year ago, I was asked by employers about what legalities were involved in Googling a job applicant, or looking at their on-line presence before making a hiring decision. It seems now, however, that once employees realized that their on-line presence is not so private, they began to restrict who could view this information on the Internet.

The city of Bozeman apparently was not happy with the increasing sophistication of people posting information on the Internet, resulting in it being shutout of viewing job applicants’ Facebook pages. So the city simply started to ask job applicants to provide their user names and passwords to social networking sites. The application provides:

Please list any and all current personal or business Web sites, web pages or memberships on any Internet-based chat rooms, social clubs or forums, to include, but not limited to: Facebook, Google, Yahoo, YouTube.com, MySpace, etc.

Many people and groups, such as the ACLU, have objected to this request arguing that it violates the job applicants’ privacy rights. As a result of the criticism it received, the city said that it will likely remove the request for user names and passwords, but may still require job applicants to “friend” the city in Facebook so that the city could still see what is posted.

I think this policy goes too far. Irrespective of the legal privacy questions raised, I do not think it would be a good hiring practice for an employer. I, for one, (and I think a lot of other people) would simply refuse to provide this information. If the city disqualifies job applicants who do not provide the information (which is claims it does not do), it is limiting its potential workforce of qualified people. Employees using these technologies are computer savy and are at least motivated enough to learn and try new technology. The job applicants who most likely will not have a problem in providing this information are those who do not know how to use a computer or the Internet and do not have any social networking accounts. Are these really the best qualified employees? In today’s workforce, a working knowledge of the Internet and social networking sites is almost a necessity. Businesses are learning about these new mediums and are discovering new ways of advertising and conducting business. It would be a detriment to not have employees who at least know what technology is available and is commonly used.

I also think that this incident will begin the discussion about people’s privacy interest in this type of information. The more and more people begin to “live” on the Internet, state legislatures will probably begin to define specifically what employers can and cannot ask for from employees.

Other articles of interest I’ve written related to employee's on-line privacy in the workplace:

California Appellate Court Holds Postings On MySpace.com Are Not Private

Can An Employer Be Liable For Not Googling A Job Applicant?

Google Latitude In The Workplace

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