October 30, 2009

What Are Your Employees Doing with Social Networking tools?

Posted in Best practices, Courts and social media, Criminal activity, Employee issues, Productivity, Social Media Tools, Web 2.0 tagged block social media, connection ownership, digital nervous system, disgruntled employee, employee, employee blog, employee risk, employer, ethics, Facebook, mind-reading, neural decoding, online community, risk management, social media, Twitter, workplace at 1:47 am by bizlawblog

It seems hard to find anything these days where there are not arguments for and against the proposition under consideration. Using the words “employee” and “social networking” in the same sentence conjures up both, and often with strong opinions.

In one camp, you have arguments, such as those expressed in Rebecca Kelley’s article, Why Companies Shouldn’t Block Social Media in the Workplace. She accurately points out that allowing employees to engage in social media on the employer’s nickel, as it were, can be good for morale, and even result in great marketing for the company. Pointing out the ambivalence of many employers, she says:

Ironically, according to a study cited in the article, “94% of companies are continuing to invest in online communities and social media.” Over half of U.S. businesses block social media sites at work, yet 94% of businesses are acknowledging the importance of social media and are starting to invest in it? It’s kind of like being a retail business that doesn’t let its employees buy anything.

I’m likely biased because I get paid to tinker around on social media and networking sites, but I do think that businesses should allow responsible and periodical usage of social media at work …

Employers can learn, the hard way, how quickly this seemingly good thing can become a bad one.

Jenna Wortham’s article, Internet Protocol: Overzealous Friending and IMing With the Boss points out that “the same rules don’t apply online as they do in the real world.” Although there is an ever-increasing number of articles, such as Blaine Bullman’s 6 Benefits Of Social Networking, espousing the virtues of allowing or even mandating employee use of social media on company time and with company resources, there is certainly another side to this for the employer. While Bullnan’s article talks about employees building meaningful relationships, engaging with your target audience and finding new insights from the experience, employers must be wary of what employees might be doing with those “meaningful relationships.”

A recent NewScientist article by Ewen Callaway, Brain scanners can tell what you’re thinking about, gives us hope (or fear) that some day soon, scientists will perfect “mind reading” technologies currently in development, which neuroscientists are using to combine brain scans with pattern-detection software to “pry open a window into the human mind.” They say the benefits of this technology should include “gaining a better understanding of the brain and improved communication with people who can’t speak or write, such as stroke victims or people with neurodegenerative diseases. There is also excitement over the possibility of being able to visualize something highly graphical that someone healthy, perhaps an artist, is thinking.” Acknowledging, “it’s an idea that’s as tantalizing as it is creepy,” Callaway notes “despite – or perhaps because of – the recent progress in the field, most researchers are wary of calling their work mind-reading. Emphasizing its limitations, they call it neural decoding.”

If you think this is science fiction, rather than science:

1. Check out my reference to William Shatner’s book in the last post on this blog; and
2. 2. Read Colin Barras’ article, Super slow-motion camera can follow firing neurons, describing development of a camera sensor able to film action at 1 million frames per second. That means it can “capture impulses hurtling through firing nerve cells, and its resolution is good enough to film the microsecond-long pulse-like nerve signals that speed through networks of neurons at up to 180 kilometres per hour.”

Bill Gates, in his 1999 classic book, Business @ the Speed of Thought, tried to answer the question, somewhat rhetorically, “So where do you want to go tomorrow?” His answer, not surprisingly, was that, thanks to technology, the speed of business is accelerating at an ever-increasing rate, and to survive, it must develop an infrastructure–a “digital nervous system”–that allows for the unfettered movement of information inside a company.

These days, we might look at this and say, “that is so ten years ago!” If we’re at the point where we have cameras which can shoot pictures at such a slow speed they can literally capture the speed of thought, as brain neurons fire off our thoughts, we’re at least well down the path of developing a “digital nervous system.” Add to that the developing technology which allow us to engage in neural decoding, a/k/a “mind reading,” then, as Dorothy said in The Wizard of Oz, we’re not in Kansas any more.

While Rebecca Kelley’s article may say social networking employees are a good thing, others, like Jim Singer, in his article, Employee Blogging and Use of Social Media – Managing the Risk, acknowledge there can be a downside to this. Granted, there are typically ways that employers can harvest benefits while minimizing risk, but when your employees are connected to the “outside world” on a pretty much continuous basis, both at work and outside of it, there would seem to be little chance of employers not getting slammed by them periodically.

I will explore this topic in much greater depth and in all its many facets, in later posts on this blog. I hope that most employers have at least heard of some of the headaches employees can generate for their current or former employers, through their communications online. Perhaps the oldest and steadiest of these is the damage of the disgruntled employee.

Such disgruntled employees may still be working for you, without your knowledge they are, in fact “disgruntled.” Since we’re apparently still a few neurons short of a full deck on the “neural decoding thing,” we probably can’t expect management staff to always detect just how unhappy a current employee may be, but we may get an eye full after they leave.

Web sites, such as Glassdoor.com are popping up all over. That particular site, referenced by Daniel Schwartz in his article, Dirty Laundry: Airing Employee Grievances Online…And Around the World, in the Connecticut Employment Law Blog, gives us a picture of how bad this can get. In fact, to test this, I just checked Glassdoor.com, using a Fortune 500 employer one of my sons had worked for as the sample. Here are just a few of the comments I found on this employer:

“Maybe it was a great place once, but I hate it here now.” (technical staff)

“Great People, Great Ideas, but no leadership to deliver” product marketing manager

“really sucks no opportunity” (sales, two years ago)

No doubt, if you’re trying to recruit the best and brightest, you’ve got a problem when those folks are checking such sites before even contacting your company for an interview. It gets worse.

John Jantsch’s article, Do You Have a Social Media Non-Compete? certainly poses a very valid question. Jantsch says:

This is probably a touchy subject in some circles, but as more and more companies encourage social media participation from employees and even create job titles such as Director of Community, it’s something that marketers are going to need to deal with. Many companies have created social media policies and strategies to address things like who can represent the company and what they can and can’t say, but as companies put real faces, not company logos, on the profiles of their staff and those real faces connect and build relationships, the growing question is – who owns the content, profile and even followers?

As with most question these days regarding social media, ask a question and you’ll get a million answers. Beth Harte has one for this question in her article, Who owns your Twitter or Facebook Connections? She says:

As you know, I’ve been reviewing and questioning personal branding lately and I have one final question (or in this case, lots of questions) for you all. Quite simply, from a “You 2.0″ perspective, if you work for a company and you build up your Twitter Followers or Facebook friends from the hours of 8am-5pm (or whatever your daily work hours are)…who owns those connections made during those hours? And as you know, you don’t need to use the company network to Twitter or Facebook, so then what?

You might not like what I am about to say here, but I believe that if a company is paying you to connect with people online on their behalf…they own those connections. Even if the accounts are under your name. I mean, they paid you, right? Or is that wrong? Or is it both? What are the ethics?

Frankly, if you get to the point of even being able to talk about ethics in this situation, you’re probably ahead of the game. In my thirty-five or so years of practicing law, I’ve done quite a bit of corporate work for insurance companies. Historically, small insurance agencies become bigger companies buy buying the “book of business” of retiring or less successful agencies. In negotiating these deals, I often find my clients, and others, offering deals that would not fly in other industries.

Sometimes I find that, to make the deal work, the growing company will acquire an agency with a buy-back provision of some sort. What this means, quite often, is that the smaller agency retains some sort of residual right to the client base it brings into the acquiring agency. In case things don’t work out down the road with the “merger,” the acquired agency may very well have the right to take the client base it brought into the deal, and detach it to play the game another day, either on its own, or with another hungry, acquiring agency.

This sort of dangerous cat and mouse game is not confined to insurance agencies, but can certainly provide some college tuition for your kids if you’re one of the lawyers involved in representing the parties. One can definitely anticipate the various parties will be trying to get their best hold on the “juicy” clients during the merged period, knowing, full well, that the norm involves periodic docking and undocking from various competitors.

Sometimes it is easy to detect that somebody is playing games with you. An article too funny to let me avoid inserting it here is Michael Arrington’s Schwarzenegger Gives California Legislature A Hidden Finger.

Often, the “game” is more sinister and the results to the employer far deeper, as Carlye Adler’s article, ‘A rival stole my staff,’ indicates.

In 2004, 10 employees — or one-third of the mortgage broker’s staff — left to work for CTX Mortgage, a much larger rival. Killian claimed the employees stole 150 pending loans, worth nearly $1 million in fees, along with customer lists and boxes of confidential files. Between 2004 and 2005, Charter Oak’s revenues plummeted from more than $3.5 million to $300,000.

Charter Oak sued CTX and the 10 defectors, claiming conspiracy, unfair trade practices and misappropriation of trade secrets. Four years and some $500,000 in legal bills later, the verdict arrived in July: Charter Oak lost on all counts.

The lesson for other small businesses? Get your paperwork in order.

“Charter Oak didn’t have confidentiality agreements and noncompete contracts,” says Milford, Conn., attorney Tim Bishop, who represented Charter Oak in the original lawsuit. “They were a typical small business that grew faster than expected.”

Noncompete agreements are by their nature, essentially anti-social, in that they are designed to prevent employees and others from “socializing” with others. This would seem to be the antithesis of social networking, which, of course, is designed to facilitate folks getting together. While there certainly may be an advantage or even a necessity for employee use of social networking tools during and after work, the prudent entrepreneur must be aware of the many opportunities for mischief.

That’s what I think. Please leave a comment and let us know what you think.

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