December 23, 2011

Social media ranking: how much “Klout” do you have?

Posted in Facebook, Social Media in the Workplace, Social Media Ranking tagged , , , , , , , at 10:09 am by Tom Jacobson

I’m a 29.  I’m not entirely sure what that means, except that on a scale of 1 to 100, Klout says it’s my social media ranking.  I guess I should try to improve that.

We love to rank things.  From David Letterman’s “Top Ten” lists to  Olympic medals and the latest political polls, there is no end to the hierarchies we create. So, I suppose it should come as no surprise that we now have social media rankings.

According to a  WCCO television report, Sites Help You Manage Your Social Networking Imprint (12/22/11), sites such as Klout and Reppify now track how we use sites like Facebook and Twitter, and they then rank us based on our “influence and social network personality.”

From an employment perspective, social media rankings present an interesting dilemma.  On one hand employers need to rank people in order to make decisions ranging from hiring to firing.  According to Carlson School of Management professor Ravi Bapna, who was quoted in WCCO report, your social media ranking “… sort of gives you a measure in how present you are in other people’s minds.” Thus, knowing an employee’s or applicant’s social media ranking may help an employer better understand that person’s potential sphere of influence.  Bapna sees this as useful for employers.

On the other hand, employers who choose to use social media rankings as an HR tool need to be cautious.  As Bapna notes, a person’s social media ranking is “not based on what this person is telling you in an interview, [but is] based [on] how this person is actually behaving in the real world.”  Making decisions based on someone’s “real world” behavior certainly seems like a good idea, but “real world” behavior might have nothing to do with how well the person does his or her job, and in some cases, a person’s “real world” behaviors are protected by law.  Thus, making decisions about an employee or applicant based on social media posts relating to his/her “real world” behaviors can be risky.

To the extent social media rankings paint an objective picture of a person’s social media clout, they may be useful in some workplaces.  An objective ranking, if gathered as a part of an established policy and procedure, is certainly better information than the Facebook post showing Johnny wearing a lampshade.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

October 12, 2011

What does your tech policy say?

Posted in Employee Handbooks, Facebook, Internet Policies, Misconduct, Social Media in the Workplace, Social Networking, Unemployment Benefits tagged , , , , at 8:27 am by Tom Jacobson

Facebook.  LinkedIn.  E-mail.  The web.  Smart phones.  We all know that the latest and greatest technology advances have become indispensable tools for business and personal use, but when personal use interferes with business, the troubles at work start to brew.   Employers with well-drafted technology use policies can keep those troubles to a minimum.

Washington County (MN) recently benefited from its own “acceptable use” policy in case decided by the Minnesota Court of Appeals (Misenor v. County of Washington). The case involved Lori Misenor, who was fired after the county discovered that over 25 workdays, Misenor sent 342 personal e-mails from her county e-mail account during business hours.  Moreover, her personal e-mails often contained information about her husband, children, finances, extramarital affair or affairs, critiques of her job and coworkers, her search for a new job, and racially insensitive material.  The Court of Appeals concluded that this was misconduct which disqualified Misenor from unemployment benefits.

Key to the Court’s decision was the fact that Washington County had an “acceptable use” policy regarding its information technology resources. Regarding this policy, the Court noted:

In this case, the county has a policy that limits the amount of personal use of the county’s e-mail system and also prohibits e-mail messages with material that is ‘obscene, pornographic, [or] racially or sexually harassing or explicit.’  This is a reasonable policy that establishes a standard of behavior that the county has the right to reasonably expect of its employees…. Despite this policy, Misenor sent 342 personal e-mails over a 25-workday period. Many of the e-mails are lengthy, indicating that Misenor took considerable time away from her duties to engage in e-mail correspondence. In addition, some of her e-mails contained racially insensitive and sexually explicit material. Misenor’s repeated violations of the county’s policy display a serious violation of the standards of behavior that the county has the right to reasonably expect of her.

Information technology policies are important for many other reasons.  Well-drafted policies set the standards of behavior that employers can expect, so they can provide the basis for disciplinary action and a defense to many legal claims. However, poorly drafted use polices have been held to violate the National Labor Relations Act (see NLRB challenges Facebook firingFacebook firings revisited – NLRB extends its reachFacebook firing case settled).

For more information about how to craft an effective technology use policy, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

June 14, 2011

Child pornography on workplace computers — ND employees become mandatory reporters

Posted in Computer Use, Cyber Bullying, Employee Handbooks, Employee Privacy, First Amendment, Social Media in the Workplace, Social Networking, Telework / Telecommuting tagged , , , , , , at 7:59 am by Tom Jacobson

In an effort to stem the troubling tide of child pornography, North Dakota has taken a unique approach: the state has passed a law requiring that all workers who know or suspect that child pornography is on a workplace computer must report the information to the North Dakota Department of Human Services.

The new law, which goes into effect on August 1, 2011 adds the following provision to section 50-25.1-03 of the state’s Child Abuse and Neglect Law:  “A person who has knowledge of or reasonable cause to suspect that a child is abused or neglected, based on images of sexual conduct by a child discovered on a workplace computer, shall report the circumstances to the department.” Under this law, it will be a crime for an employee/mandatory reporter to willfully fail to make the required report.  It will also be a crime for an employer to retaliate against an employee who makes a good faith report.

Minnesota also has a mandatory reporting law, Minnesota Statute § 626.556, but it does not impose a reporting obligation on workers in general; only certain professionals such as doctors, social workers, law enforcement personnel, clergy, etc., are designated as mandatory reporters of child abuse or neglect.  And, it does not directly address this issue of computerized child pornography.

North Dakota’s new law is not only an aggressive move to try to stop child pornography, for it is also a regulatory foray into the intertwining world of work, technology, social media, and privacy rights.   Arguably, this law gives North Dakota employers a stronger case that their employees should not expect any right of privacy with respect to their use of company computers.  It should also be signal to everyone that new laws will likely be passed to address the complex entanglement of work, social media and related technologies.

Until these laws are on the books, or until existing laws are interpreted and applied to these ever-changing technologies, the best practice is to develop sound employment policies that clarify what every employee’s rights and responsibilities are with respect to their use of social media, computers, smart phones and whatever the next great technologies may be.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

May 23, 2011

The times they are a changin’: will you sink or swim?

Posted in Computer Use, Confidential Information, Employee Privacy, Exempt/Non-Exempt Employees, Independent Contractors, Internet Policies, Social Media in the Workplace, Social Networking tagged , , , at 8:11 pm by Tom Jacobson

As I sit through the 2011 Minnesota Employment Law Institute, this 1964 Bob Dylan classic has been running through my mind:

“Come gather ’round people
Wherever you roam
And admit that the waters
Around you have grown
And accept it that soon
You’ll be drenched to the bone
If your time to you
Is worth savin’
Then you better start swimmin’
Or you’ll sink like a stone
For the times they are a-changin’.”

The Times They Are a Changin’, Bob Dylan (1964), http://bit.ly/hAPUnh.

Dylan’s words couldn’t be more fitting for today’s employers.  The 2011 Institute points out that rising around us are floodwaters like Facebook, blogs, tweets, Wikileaks, the new Americans with Disabilities Act regulations, increased enforcement efforts by the Department of Labor, protecting confidential information and trade secrets, and the mis-classification of non-exempt employees and independent contractors.  Employers who accept the sea of change and learn how to swim through it will succeed; those who don’t will sink like stones.

To learn to swim, we hire instructors and take lessons.  If you would like more information about how I can teach you to swim though the sea of employment law change, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

November 12, 2010

NLRB challenges Facebook firing

Posted in Collective Bargaining, Employee Handbooks, Internet Policies, National Labor Relations Act, Social Media in the Workplace, Social Networking tagged , , , , at 1:17 am by Tom Jacobson

In a case to be watched, the National Labor Relations Board claims that an employer illegally fired an employee who criticized her supervisor on Facebook.  The case involves Dawnmarie Souza who was a paramedic for  American Medical Response.  Souza posted her negative commentary from her home computer, and this prompted her co-worker Facebook friends to respond with their own comments supporting Souza.  That, in turn, lead Souza to post more criticism of her supervisor.  American Medical Response then fired Souza because her posts violated the company’s Internet policies.

The NLRB has now stepped into this Facebook firing fray.  The NLRB is a federal agency charged with safeguarding employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.

According to the NLRB, Souza’s firing violated the National Labor Relations Act.  The NLRA is a federal law that gives employees the right to form unions, and it prohibits employers, whether unionized or not, from interfering with their employees’ right to discuss working conditions or unionization.  In Souza’s case, the NLRB claims that American Medical Response’s Facebook rules are overbroad and improperly limit the employees’ right to discuss working conditions.

This is the first case where the NLRB has made the argument that employees engage in protected activity when they use social networking sites to criticize their employers or supervisors.  The outcome of the case could have a significant impact on how employers implement and enforce their Internet and social networking policies.  A hearing on the case is scheduled to begin on January 25, 2011.

For more detail on the story, see NLRB: Workers’ rights extend to Facebook, http://bit.ly/cl9BbX.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

October 13, 2010

The spy who nagged me

Posted in Employee Handbooks, Employee Privacy, Personnel Records, Social Media in the Workplace tagged , , , , , at 11:13 am by Tom Jacobson

Dr. Evil nagged Austin Powers.  The FBI seems to have nagged Yassir Afifi.

When 20 year old Afifi went in for a recent oil change, he noticed an antenna protruding from under his car.  His mechanic yanked on it and pulled out a magnetically mounted GPS tracking unit, battery pack and radio transmitter.  After Afifi posted pictures of the device on the internet, the FBI paid him a visit to retrieve their gear.  Afifi denies doing anything to merit such attention from the authorities.  For more detail on Afifi’s story, read FBI Busted Tracking Student, Demands GPS Spy Gear Return, MSNBC.com http://bit.ly/atOxaL.

Whether the FBI acted properly or somehow invaded Afifi’s privacy is a nagging question in some legal circles.  It reminds me of the nagging questions asked by many employers:  What privacy rights to employees have?  To what extent can an employer “spy” on employees and applicants?

The questions arise at many levels.  “Work” is now conducted via e-mail, text, Facebook, Twitter and practically every other social media that exists.  Can an employer monitor those communications?  Does it matter if the communications are work-related but are conducted on the employee’s personal computer or cell phone?  Is it permissible to use cell phones, GPS units, and other devices to track an employee’s whereabouts?  How can an employer make sure that its confidential trade secrets are not published on the web with just a click of someone’s mouse or downloaded onto the thumb drive of a departing employee?  Can an employer use Facebook, MySpace or other social media to gather information about employees or applicants?

There are no easy answers to these questions.  Generally speaking, employees have a limited right of privacy with respect to information such as their work-related medical records.  Yet, employers need to retain the right to make sure the workers they employ are actually working and not using company resources improperly.  While social media and other on-line resources can provide a wealth of information about employees and applicants, the misuse of that information by an employer can subject the employer  to legal claims.

As with so many HR issues, the solutions lie in developing policies that clearly spell out employees’ privacy rights  (or lack thereof) while on the job.  By doing so, employers will help define the limits of work-related privacy and will reduce their risk of liability for privacy-based employment claims.

Should such lawsuits really be a serious concern?  Just ask the Lower Merion School District (PA).  They just paid $610,000.00 to settle two lawsuits centering around thousands of webcam photos secretly taken of students via their school-issued laptops (Pa. school settles 2 webcam spy lawsuits for $610K,  http://yhoo.it/bmFigL).  Although that case involved public school students and not employees, the core lesson is the same — failure to proactivelyaddress these issues will be extremely costly for employers.

June 18, 2010

U.S. Supreme Court Rules Public Employer’s Search of Text Messages on Employer-Provided Device Was Reasonable.

Posted in Employees' Privacy, Social Media in the Workplace tagged , , , at 3:13 pm by Tom Jacobson

For more details, go to http://bit.ly/9ZxXOE.

May 21, 2010

Facebook faux pas costs waitress her job

Posted in Social Media in the Workplace, Uncategorized tagged , , , , , , , , at 10:05 am by Tom Jacobson

What happens when an employer discovers that an employee, on her off-duty time, posted on Facebook some derogatory comments about the employer and the employer’s customers?  It cost this waitress her job.  To read the full story from the Charlotte, NC Observer, visit http://bit.ly/dujZVW.

The legal implications of social media in the workplace will be addressed at the Seventh Annual West Central Minnesota Employment Law Update on June 10 in Alexandria, MN.  For more information on the seminar, visit http://bit.ly/adcEVi.

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