Google is cracking down on mobile pop-up ads by knocking down the search-result position of websites that use them.

The National Labor Relations Board decided a social media policy that Chipotle had in place for its employees violates federal labor law.

A group of lawmakers plans to introduce legislation that would criminalize revenge porn—explicit images posted to the web without the consent of the subject—at the federal level.

The Truth in Advertising organization sent the Kardashians a letter threatening to report them for violating the FTC’s endorsement guides. This isn’t the first time the legality of the famous family’s social media posts has been called into question. If only Kim would read our influencer marketing blog posts.

According to one study, 68% percent of publishers use editorial staff to create native ads.

Twitter launched a button that a company can place on its website to allow users to send a direct message to the company’s Twitter inbox.

The Center for Democracy & Technology criticized the Department of Homeland Security’s proposal to ask visa-waiver-program applicants to disclose their social media account information.

UK lawmakers issued a report calling on the big social media companies to do more to purge their platforms of hate speech and material that incites violence.

Social media is playing bigger role in jury selection, Arkansas prosecutors and criminal defense lawyers say.

A day in the life of the Economist‘s head of social media.

Seven things smart entrepreneurs do on Instagram.

Four ways to get busy people to read the email you send them.

Want to know how Facebook views your political leanings? Here’s the way to find out.

Unlucky businessman being wet from raining instead he holding umbrella, misfortune or in trouble concept.

A few months ago, we noted that a Yelp employee’s online “negative review” of her employer might be protected activity under the National Labor Relations Act (NLRA), given that the National Relations Labor Board (NLRB) has become increasingly aggressive in protecting an employee’s right to discuss working conditions in a public forum, even when that discussion involves obscenities or disparaging the employer. This trend has prompted us to report previously on the death of courtesy and civility under the NLRA.

Now the NLRB has confirmed that it is not only courtesy and civility that have passed away—a “positive work environment” has perished with them.

A recent NLRB decision found that T-Mobile’s employee handbook violated the NLRA by requiring employees “to maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management.”

According to the NLRB, employees could reasonably construe such a rule “to restrict potentially controversial or contentious communications,” including communications about labor disputes and working conditions that are protected under the NLRA. The NLRB concluded that employees rightly feared their employer would consider such communications to be inconsistent with a “positive work environment.” Similarly, the NLRB struck down T-Mobile’s rules against employees “arguing” and making “detrimental” comments about the company.

The main sticking point appears to be requiring employees to be “positive” towards co-workers and management. Earlier NLRB cases have indicated that requiring employees to be courteous only towards customers may not set off as many NLRB alarm bells. Nonetheless, employers should tread carefully—and try not to be too cheerful. Encouraging a positive attitude among employees could have negative results.

*      *      *

For more on NLRA-related considerations for employers, please see the following Socially Aware posts:

A Negative Review May Be Protected Activity Under U.S. Employment Law

The Second Circuit Tackles Employee Rights, Obscenities & Social Media Use

 The Death of Courtesy and Civility Under the National Labor Relations Act

 Employee Social Media Use and the NLRA

04_21_Apr_SociallyAware_v6_Page_01The latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award winning guide to the law and business of social media. In this edition, we discuss what a company can do to help protect the likes, followers, views, tweets and shares that constitute its social media “currency”; we review a federal district court opinion refusing to enforce an arbitration clause included in online terms and conditions referenced in a “wet signature” contract; we highlight the potential legal risks associated with terminating an employee for complaining about her salary on social media; we explore the need for standardization and interoperability in the Internet of Things world; we examine the proposed EU-U.S. Privacy Shield’s attempt to satisfy consumers’ privacy concerns, the European Court of Justice’s legal requirements, and companies’ practical considerations; and we take a look at the European Commission’s efforts to harmonize the digital sale of goods and content throughout Europe.

All this—plus an infographic illustrating the growing popularity and implications of ad blocking software.

Read our newsletter.

Yelp, Inc. is more accustomed to being on the giving—rather than the receiving—end of a negative review. That changed recently when a Yelp customer service employee, Talia Ben-Ora, posted an open letter to Yelp’s CEO on her blog, lamenting her daily struggle to survive in the Bay Area on low pay. Ben-Ora spent much of the letter discussing wages, benefits, and the financial challenges faced by her co-workers:

Every single one of my co-workers is struggling. They’re taking side jobs, they’re living at home.… Another wrote on those neat whiteboards we’ve got on every floor begging for help because he was bound to be homeless in two weeks…. Let’s talk about those benefits, though. They’re great. Except the copays.… Twenty bucks each is pretty neat, if spending twenty dollars didn’t determine whether or not you could afford to get to work the next week.

I got paid yesterday ($733.24, bi-weekly) but I have to save as much of that as possible to pay my rent ($1245) for my apartment that’s 30 miles away from work because it was the cheapest place I could find that had access to the train, which costs me $5.65 one way to get to work. That’s $11.30 a day, by the way. I make $8.15 an hour after taxes…. I woke up today with stomach pains. I made myself a bowl of rice.

…As I said, I spend 80% [of my income on rent]. What do you spend 80% of your income on? I hear your net worth is somewhere between $111 million and $222 million. That’s a whole lotta rice.

Shortly after Ben-Ora posted the letter, Yelp terminated her employment. Yelp’s CEO stated that her termination was not related to the letter, but Ben-Ora’s post has the online world buzzing and Yelp is not receiving positive reviews.

There may be many valid reasons for terminating an employee. Employers should note, however, that the National Relations Labor Board has become increasingly aggressive in protecting an employee’s right to discuss wages and working conditions in a public forum, even when that discussion involves disparaging the employer. Under Section 7 of the National Labor Relations Act (NLRA), protesting an employer’s labor policies or treatment of employees is considered protected activity, and this protection extends to non-unionized employees as well. While there appear to be no reports of legal claims by Ben-Ora, commentators have raised the question of whether this type of posting might be legally protected under the NLRA.

The Ben-Ora incident is therefore a reminder of the risks employers may face—both legally and from a public relations perspective—in terminating an employee who has recently protested wages on social media.

10-14-2015 3-48-13 PMThe latest issue of our Socially Aware newsletter is now available here.

In this issue of Socially Aware, our Burton Award-winning guide to the law and business of social media, we highlight five key social media law issues to address with your corporate clients; we discuss when social media posts are discoverable in litigation; we identify six important considerations in drafting legal terms for mobile apps; we take a look at the clash between bankruptcy law and privacy law in RadioShack’s Chapter 11 proceedings; we examine a recent federal district court decision finding “browsewrap” terms of use to be of benefit to a website operator even if not a binding contract; we outline best practices for employers’ use of social media to screen and interact with employees and conduct workplace investigations; we explore a Washington state court’s refusal to unmask an anonymous online reviewer; and we discuss Facebook’s recent update of its “Notes” feature.

All this—plus an infographic illustrating the growing popularity of video on social media.

Read our newsletter.

 

Social_Community85The explosive growth of social media has clients facing legal questions that didn’t even exist a few short years ago. Helping your clients navigate this muddled legal landscape will have them clicking “like” in no time.

What’s in a Like?

Not long ago, the word “like” was primarily a verb (and an interjection used by “valley girls”). You could have likes and dislikes in the sense of preferences, but you couldn’t give someone a like, claim to own a like or assert legal rights in likes. Today, however, a company’s social media pages and profiles, and the associated likes, followers and connections, are often considered valuable business assets. Courts have come to various conclusions regarding whether likes and similar social media constructs constitute property, but one thing is clear: Every company that uses social media should have in place clear policies regarding employee social media use and ownership of business-related social media accounts.

Employees who manage a company’s social media accounts often insert themselves as the “voice” of the brand and establish a rapport with the company’s fans and followers. Without clear policies that address ownership of social media accounts, and clearly distinguish between the company’s accounts and employees’ personal accounts, your client may find itself in a dispute when these employees leave the company and try to take the company’s fans and followers with them.

Read a more detailed description of “likes” as assets here.

Dirty Laundry

It comes as no surprise that employees frequently use social media to complain about managers and coworkers, pay, work conditions and other aspects of their employment. Companies often would prefer not to air these issues publicly, so they establish policies and impose discipline when employees’ social media activity becomes problematic. Companies need to be careful, however, that their policies and disciplinary actions comply with applicable law.

A number of National Labor Relations Board decisions have examined whether employees’ statements on social media constitute “concerted activity”—activity by two or more employees that provides mutual aid or protection regarding terms or conditions of employment—for purposes of the National Labor Relations Act (which, notably, applies regardless of whether the employees are unionized or not). Companies also need to be careful to comply with state statutes limiting employer access to employees’ personal social media accounts, such as California Labor Code Section 980, which prohibits an employer from asking an employee or applicant to disclose personal social media usernames or passwords, access personal social media in the presence of the employer, or divulge personal social media.

Read more about the intersection of social media policies and labor law here and here.

Terms of (Ab)use

Companies often consider their social media pages and profiles to be even more important than are the companies’ own websites for marketing and maintaining customer engagement. But a company’s own website has one advantage over a third party social media platform: The company sets its own terms for use of its website, while the third party social media platform is subject to terms of use imposed by the platform operator. And, in many cases, the terms imposed on users of social media platforms are onerous and make little distinction between individual users using the platform just for recreation and corporate users who depend on the platform for their businesses.

Social media terms of use often grant platform operators broad licenses to content posted on the platform, impose one-sided indemnification obligations on users, and permit platform operators to terminate users’ access with or without cause. You may have little luck negotiating modifications to such online contracts for your clients, but you can at least inform your clients of the terms that govern their use of social media, so that they can weigh the costs and benefits.

Read more about social media platforms’ terms of use here, here, and here.

Same as It Ever Was

When it comes to using social media for advertising, the media may be new but the rules are the same as ever. Companies that advertise through social media—especially by leveraging user endorsements—need to comply with Section 5 of the FTC Act, which bars “unfair or deceptive acts or practices.” Bloggers and others who endorse products must actually use the product and must disclose any “material connections” they have with the product providers (for example, a tech blogger reviewing a mobile phone that she received for free from the manufacturer should disclose that fact). Because this information is likely to affect consumers’ assessment of an endorsement, failure to disclose may be deemed deceptive. So if you have a client that uses endorsements to promote its products, make sure to brush up on the FTC “Dot Com Disclosures” and other relevant FTC guidance.

Read more about endorsement disclosure obligations here.

Good Rep

As noted, a company’s social media pages, followers, etc., may constitute valuable business assets. But buyers in M&A transactions often neglect such assets when formulating the seller’s reps and warranties. Buyers should consider asking the seller to disclose all social media accounts that the target company uses and to represent and warrant that none of the target’s social media account names infringe any third party trademark or other IP rights, that all use of the accounts complies with applicable terms of service, and that the target has implemented policies providing that the company (and not any employee) owns all business-related social media accounts and imposing appropriate guidelines regarding employee use of social media.

Finally, if you have clients that use social media, it’s important to be familiar with the popular social media platforms and their (ever-changing) rules and features. Learning to spot these issues isn’t going to turn you into the next Shakira—as of this writing, the most liked person on Facebook with well over 100 million likes—but your clients will surely appreciate your help as they traverse the social media maze.

Read more about social media assets in M&A transactions here.

This piece originally appeared in The Recorder.