This month, InsideCounsel’s cover story focuses on the obstacles social media presents to businesses and law departments. Levenfeld Pearlstein’s panel on mitigating social media risks addressed many of these issues using both real world examples and hypothetical situations. On Wednesday, the firm invited business and law department leaders to its offices for a two-hour briefing on social media from several perspectives—labor and employment, intellectual property, litigation, corporate and marketing.
The panel took attendees through three of the most prominent and problematic social networking platforms—Facebook, LinkedIn and blogging—using fictional examples created on the actual websites to give an accurate picture of how social media works and what problems arise in practice.
Laura Friedel, a partner in the firm’s labor and employment service group, explained that employers must understand what rules apply to online conduct and be cautious not to overstep them. The National Labor Relations Board, she explained, can respond to even non-union complaints if retaliation occurs against concerted activity online. While it’s still unclear exactly what will qualify as concerted activity on social media websites, Friedel advocates a better-safe-than-sorry approach until clear standards come down through the courts.
Citing recent cases, Friedel cautioned employers to think twice before firing an employee for negative comments made on Facebook and other social media platforms. Such comments could be protected as concerted activity, especially if other employees comment on the posting, just like face-to-face conversations among employees about working conditions.
“Take a close look at any policy you have about employee statements,” she said, adding that simply having policies that prohibit negative comments on social media could violate workers’ rights to engage in concerted activity.
Mary Wasik, vice-chair of Levenfeld’s corporate practice group, seconded the importance of carefully considering employee policies regarding social media, noting that despite the websites’ growing prominence, many employers still haven’t formally addressed the issue.
“Most provisions in employment handbooks address use and disclosure of proprietary information,” she said. “But most don’t cover social media.”
Although policing employees’ use of social media can be risky, Friedel says one way employers can safely take advantage of social media is in proving employee misconduct—as long as the methods of doing so are legitimate and legal. Any public profile information or information the employee in question has granted legitimate access to is fair game, she said. She warned, however, against being “too clever” and resorting to unlawful behavior such as password guessing to gain access to the information on these accounts.
While Facebook is the most popular of the social media websites worldwide, LinkedIn has a strong following among professionals presents its own issues.
“All social media sites include in their terms and conditions rights to content posted on the site,” explained Marc Fineman, a partner in the firm’s intellectual property service group. “LinkedIn has the broadest license and is the most problematic to companies.”
Fineman quoted the licensing portion of LinkedIn’s user agreement, which states, “[Users] grant LinkedIn a nonexclusive, irrevocable, worldwide, perpetual, unlimited, assignable, sublicenseable, fully paid up and royalty-free right to us to copy, prepare derivative works of, improve, distribute, publish, remove, retain, add, process, analyze, use and commercialize, in any way now known or in the future discovered, any information you provide, directly or indirectly to LinkedIn, including but not limited to any user generated content, ideas, concepts, techniques or data to the services, you submit to LinkedIn, without any further consent, notice and/or compensation to you or to any third parties.”
The implications of such a broad policy, Fineman said, can be staggering. “Fairly innocent and innocuous posts can have broad implications down the line for intellectual property,” he said.
Finally, when it comes to corporate blogging or marketing in the blogosphere, Fineman says companies tend to forget the rules of the IP game. Education is key, he said, emphasizing that employers should take time to train employees on proper use of materials found online to counter the incorrect assumption that anything found on the Internet is free for public use. Even on the web, standard copyrights apply.
“If you wouldn’t do it in the real world, don’t do it in the virtual world,” Fineman said.
Still, despite the risks, the panelist said it’s not realistic—or prudent—to avoid social media completely.
“Every social media platform is not right for each business, but if you don’t start, businesses are going to die,” emphasized Andrea Crews, director of marketing and business development at Levenfeld.