Post of the Day — Manpower Employment Blawg

August 26, 2009

Today’s post of the day comes from Mark Toth’s Manpower Employment Blawg.  The post is entitled: “How Employers Use Social Media” and is based on the readily observable notion that “[m]ore and more employers are using social media to gather ‘intelligence’ on employees and potential candidates.”

The article walks you through a bunch of interesting statistics about what social media sites employers are using to evaluate employees and job candidates and utilizes real-world examples of tweets (Twitter) and Facebook status updates that have resulted in current employees getting canned and job hunters getting passed over.

To his credit, Mr. Toth also discusses how job candidates are successfully using social media to increase their chances and the particular information that employers look for when evaluating candidates online.  The bottom line, according to the post:

Your employees are using social networking tools. If you don’t, too, you might be missing a hugely valuable source of information.

So, get connected. But be careful about anything (1) you personally post and/or (2) use to make employment decisions. For the former, use our time-honored “mom” test (don’t say anything you wouldn’t want your mother to read). For the later, the test is simple: job-related, job-related, job-related. If it ain’t, don’t use it.

My $0.02: As a management-side employment law attorney (aka employment defense attorney), I can confidently say that, in addition to having your employers scour your social media activities, your employers’ lawyers are doing the very same thing.  Every time that your employer catches wind of a grievance, administrative charge, EEOC complaint, or a potential employment-related lawsuit, they will likely be all over your social media sites (like white on rice).  At a minimum, you can rest assured that, when I get retained on a case, social media sites are one of the first places I go.  That fact alone should give additional importance to the “mom” test described by Mark Toth.

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Employees v. Employers on LinkedIn

July 23, 2009

Current Employment recently ran an interesting article: “Employers: The LinkedIn Recommendation is Not for You.”  The premise of the post is that the reviews that both prior and current employers are leaving for employees on sites such as LinkedIn and Facebook.  For employment lawyers, the problem (or the benefit — depending on whose side you are on) immediately jumps out:

Employees get terminated. A lot. And a lot of those terminations are based on performance.  As a plaintiffs’ attorney, the best evidence you have of a wrongful or discriminatory termination is documentation establishing that the “pretext” for the termination (the performance problem) is false.  Suddenly LinkedIn is in play.  Since the vast majority of reviews on LinkedIn are positive, any and all employment lawyers with plaintiff clients should be scouring the site for positive reviews from the same managers that term’ed the employee for “performance” problems.

Tim Eavenson, the author of the Current Employment article sums it up quite well:

This is just the Web 2.0 version of advice that management lawyers have been giving forever – be very careful about praising your exiting employees.  I know it sounds harsh, but glowing praise (particularly where it is undeserved) can really be a problem.  If an employment case goes to trial, you will be in the uncomfortable position of having to explain to a jury what happened in the hours or days between the writing the amazing recommendation and the time you canned the employee for poor performance.

Tim then poses the question of whether the recommendation feature on LinkedIn is worth anything.  He offers several suggestions and I agree: since anyone can make a recommendation, you can get recommendations from co-workers, friends, buddies, company insiders, or anyone else who might have a foot-in-the-door.  You can also get recommendations from prominent people you may have not worked but have interacted with: committees, boards, groups, clubs, etc.

The take-away: Employers – be careful; be very careful. Employees – a good-word or a thumbs-up from a respected colleague or member of the community can be the difference between an interview and a resume sent straight to the paper shredder.

As with all social media, the feature works better when more people use it.  And I encourage you to do that. When you have a reason to leave a recommendation or describe an experience or if someone requests your assistance, take that request seriously and give some thought into what you write.  As more and more employers turn to social media sites for background information on potential employees, this accurate data becomes invaluable.


Legitimate LinkedIn Reviews

July 7, 2009

Corporate attorneys are advising supervisors and managers to be careful when posting overly-positive or potentially misleading employee endorsements on LinkedIn. The big concern is that crafty employee plaintiffs’ counsel will use LinkedIn reviews much in the same way that they currently use positive reviews found in the employee’s written file: to establish that their client was wrongfully discharged or fired as a result of discrimination.

Counsel who represent employers have all come across glowing employee reviews that discuss, at length, the superior qualities and work ethic of an employee who, within weeks of the review, is fired for poor performance or insubordination.

As described in the National Law Journal’s article:

Plaintiffs’ lawyers, they fear, are scouring these sites, looking for evidence to dispute firings, as most LinkedIn recommendations are positive. So if a supervisor claims that an employee was let go due to performance problems but gave a rave review about him or her on LinkedIn — that, the lawyers stress, won’t look so good.

It is a valid point.  Employment lawyers and H.R. personnel are constantly instructing management and supervisors to conduct regular, accurate, performance reviews.  Reviews posted on LinkedIn need to be equally accurate.  A good practice employers might implement is to tell their supervisors and managers not to post reviews, positive or negative; according to Carolyn Plump, a partner at Philadelphia’s Mitts Milavec, as quoted in the National Law Journal:

Generally, my advice is that I think employers are often better served by merely stating dates of employment, positions with the company and salary, and staying away from much more because there are so many potential ramifications if they say something.

Of course, like most stories, this one has both sides.  The example cited by the National Law Journal is that of a supervisor who is constantly leaving negative reviews.  While a single negative review might be offered as evidence of discrimination, counsel for the management could offer evidence of all the other negative reviews to establish that the supervisor was not singling out a particular gender, race, or nationality.

So what is the conclusion?  It is the always the same conclusion.  Conduct regular, accurate, performance appraisals and enforce your existing policies indiscriminately.

Related Post:
The LinkedIn Bible: If Your Profession is Your Religion, This May Be for You


Review: Social Networking for the Legal Profession

June 27, 2009

The Internet is a great resource.  It allows people with what would otherwise be unheard-voices express their opinions, thoughts, and contributions to the collective discussion that is currently taking place throughout the United States and the World at large (look no further than the controversy over the Iranian Elections to see proof of that).

One drawback is, of course, that certain people proclaim to be authoritative on subjects they may not be authoritative on (disclaimer: I claim to be authoritative on nothing).  A possible example of this is the publication of Social Networking for the Legal Profession (“Social Networking”).  The title certainly is catchy.  And, hey, show me a lawyer who isn’t looking for ways to develop business and I’ll show you a lawyer who has retired (or who has been elected or appointed as a judge).

The problem with Social Networking (the book, not the concept) is that it does not really seem to offer any novel information or approaches.  The official spiel reports (as nearly all of us already know):

Now, we are proud to announce the release what is a major new report, published in association with Ark Group, entitled Social Networking for the Legal Profession, In the report, Lee Bryant and I look at ways in which legal professionals are exploiting social networking for business, both internally for operations and communication, and externally as part of their marketing and business development efforts.

Plenty of buzzwords: exploiting social networking, increasing operations and communications, and marketing as well as business developments.  Certainly, each of these goals is worthy of any attorney.  But I’m not sure that Social Networking for the Legal Profession is any better at assisting people in these pursuits than much of the freely available information online.  A quick Google or Bing search should give you a lot of information that you might be looking for.

As with all publications such as  Social Networking, I have significant questions, especially when I am asked to pay for them.  Here are some of the claims the authors will attempt to discuss: (#) what social networking means; (#) using online social networks; (#) policy and governance issues around social networking adoption; and; (#) future social networking trends and their impact on the legal profession.  I’m fairly certain that I can find good answers to all of these questions for free among friends, colleagues, and Twitter-buddies.

Don’t get me wrong; it is great to see these discussions taking place and, more particularly, to see big firms such as Allen & Overy and Latham Watkins becoming involved.  Clients deserve more information and involvement and we should all be seeking to facilitate it.  We are in teh business, after all, of representing clients.  However, as we all know, this universe is shifting on a weekly, if not daily basis.

The resident expert for Social Networking, Penny Edwards, is described as follows: “Penny is an enterprise social computing consultant at Headshift, where she leads the user analysis, engagement, adoption and community building elements of projects with legal and professional services firms.”  Not exactly a resume that I would look for if I were trying to hire a law firm marketing manager. But hey, I’m just a young associate; what do I know.

As social media in the law develops and, as we all play a part in it, I hope that no one book or convention will control how it is implemented and used.  We have already posted the following three articles (free access I might add):

We also recently posted a detailed story about JDSupra and how that website is changing the way biglaw is down, how the legal landscape is viewed, and who has access to the information necessary to make legal decisions in their lives.  We hope you have time to check it out: Social Media Legal Spotlight: JDSupra / JDScoop.

It is through constantly developing and revising articles and websites such as these, as well as judicial opinions defining the parameters of how social media can be used in litigation and the investigation processes that will determine how social media will affectually affect all of us in law. Personally, I would not invest heavily in “books” or “treaties” on the subject matter. If it isn’t readily available online, contact me, and I will find it for you.  Trust me, it is out there.

In the meantime, check out some of these legal heavyweights on Twitter; they should be able to help:

http://twitter.com/tysonsnow
http://twitter.com/LeeRosen
http://twitter.com/constructionlaw
http://twitter.com/AdvertisingLaw
http://twitter.com/SmallFirm
http://twitter.com/justia
http://twitter.com/StephKimbro
http://twitter.com/tweetlaw

A complete review can be found over at JDScoop, but that previous list should keep you busy!  And don’t forget to add me: @tysonsnow

Now, we are proud to announce the release what is a major new report, published in association with Ark Group, entitled Social Networking for the Legal Profession,


Twitter and Employment Law Issues

May 29, 2009

The one thing that became quite clear while I was in law school — and even more clear once I was out of school and practicing in the “real world” — was that between WiFi and required laptops, law school students are much more adept at cruising the web and integrating technology than your average esquire.

It is not surprising to find a lot of law school students on various social media sites and in various social media outlets.  Indeed, most lawyers on Twitter either know of or have heard of the infamous @rex7, the self-proclaimed social media law student and owner of the aptly named Social Media Law Student Blog.  Rex Gradeless’s blog is an excellent source of news and information about how law students and lawyers are using social media in their professional and personal lives.

I like to consider myself an employment law litigator and one of the interesting areas developing in employment law deals with how social media is being used in employment settings and potential liabilities and concerns that might result.  So, when I saw the following article, I had to see what it had to say:

The First Law School Seminar Paper on Twitter: Twitter and Employment Law Issues

The following is a seminar paper authored by Vincent Pascual on Twitter and potential Employment Law issues that employers and employees may face with regards to what users post online and how those posts may have consequences.  The paper was produced for a course entitled “Employment Law and Technology,” taught at the University of San Diego School of Law during Spring Semester 2009 by Rich Paul, Partner at Paul, Plevin, Sullivan & Connaughton LLP, whose practice focuses on employment law.

The article is surprisingly thorough.  It has a good introduction to what Twitter is, how to use it, and how it is being implemented in the world of employment and employment law.  It goes on to discuss practical applications of Twitter in the workplace and what concerns need to be thought through and addressed, including:

  • Protection of Trade Secrets
  • Privacy and Defamation
  • Use of Tweets in Hiring/Firing
  • Un-productivity
  • Medical and Personnel Records
  • Fake Profiles and Potential Identity Theft

Since it is a “law school seminar paper,” it includes numerous citations and references.  While I don’t agree with all of the conclusions (from the standpoint of an employment law attorney), I do believe that the paper is a great way for people to dig into and start understanding Twitter.  This understanding will become valuable as we all become more familiar with and visible on various social media outlets.  The conclusion is applicable to everyone (employees, employers, lawyers, law school students, etc.):

Until further rules of engagement have been developed, anybody who uses Twitter or any other social network is strongly advised to think before tweeting.  Users must consider whether whatever they tweet will be misconstrued or taken out of context.  If users tweet carelessly and without regard for potential consequences, then those users can expect possible action taken against them by an employer, prospective employer, employee, or even friend.

Only one thing is certain.  Although social media is relatively young, especially in the legal world, it will continue to be more and more prominent, in our personal and professional lives.  And you can bet that it will be law school students (both now and in the future) that will continue to drive new technology into firms.  This is the type of information that we should all be paying attention to.  Besides, when you get a discovery request asking for all ESI related to “tweets,” you really should know what you are looking for.


Figuring Out Twitter – For Lawyers and Attorneys

May 4, 2009

I recently came across an interesting article that purported to help people figure out how to use Twitter.  There are hundreds upon hundreds of blog posts and lists about how to figure out Twitter and how to maximize its potential, particularly in a business environment.  I link to this article, Figuring Out Twitter, because it is targeted towards lawyers and business owners. And, it provides some good information that any lawyer using social media should consider.

The two most poignant paragraphs of the article are, in my mind:

Of course, most lawyers aren’t publishers, and their interest in Twitter extends only so far as there are tangible benefits to their business (and rightly so). But I think the same principles that guide my Twitter use can apply to lawyers’ hard-nosed business use of Twitter.

Above all, you need to remember that no one reads Twitter because they care about you — they do it because they care about themselves. So talk to them, and talk about them. Give them links to news and knowledge that benefit them, no matter where these links lead (even, I’d go so far as to say, to a competitor’s website). Offer tips, pithy observations, and checklists in serial form (no one uses Twitter this way better than Matt Homann). Ask questions relevant to your practice area, and blog the results (and link to the post from Twitter, of course). Strive to make your Twitter feed an important source of knowledge to your readers.

The statement that no one follows you on Twitter is not because they are about you but because they care about themselves is absolutely correct. The reason people follow you is because you provide timely, irrelevant, and useful information to them. Whether it is business suggestions, links to recently published articles, and a chuckle of laughs throughout the day, your Twitter followers are there because they have found a way to benefit from what you are saying.

This principle must be kept in mind as you are preparing your tweets and thinking about what information really needs to be broadcasted your followers. That said, don’t get too tied down in what you write about. Most of my tweets are related to employment law and IP litigation (and recent developments in those areas of law) but I do mix in personal things here and there. If you really want to build a true relationship with your followers, you should get to know each other on a level that is slightly deeper and more meaningful than a bunch of links to random articles and a description or your breakfast or commute.

The final point on the post over at Law21.ca is dead on:

Finally, don’t concern yourself with how many followers you have — it’s a meaningless statistic, not least because a lot of people are gaming the system to try to build up impressive-looking follower totals, to make themselves look more popular than they deserve or just to stroke their egos. Concentrate on quality over quantity — ten loyal readers, any of whom could bring you business any day, are worth more than a thousand followers who added you out of curiosity, reflex or politeness.

That advice should rarely be disregarded.