I’ve been thinking about communication lately.  Many people don’t like to talk on the phone anymore.  As more and more people get smart phones, the number of voice minutes used has stayed the same, while the data usage is skyrocketing. 

I have long preferred email, where possible, to voice calls, and hardly speak on the phone at all outside the office.  Now, email is old-hat in many circles, and I text not only my friends, but colleagues, parents and day care providers. 

I was at a meeting of the Durham Small Business Advisory Committee yesterday, and we were discussing how best to let people know about our programs.  There are so many ways to reach people, newspaper, radio, email blasts, list-servs, tweets, Facebook, etc. 

How do you like to be contacted?

Electrons are buzzing today about the CISCO 2010 Midyear Security Report, which states that seven percent of the people who access Facebook at work spend more than an hour a day playing FarmVille, Mafia Wars and similar games. 

Social media policies have their place to protect the legitimate interests of businesses, but I have to agree wholeheartedly with David B. Thomas of SAS, who sees this as a performance management problem rather than a social media policy problem:

This is not trivial. This is not insignificant. Social media can be a productivity drain. But so can the Web. So can the phone. So can talking to co-workers. So can… air. Chairs. Doors. I once saw a co-worker at a previous job sit in her chair, handbag on her lap, and stare into space from 4:45 until 5:00, then get up and go home.

If people don’t want to work, are bored with their jobs, don’t understand their contribution to the organization, how it affects the bottom line and why it’s in their best interest to do their jobs well, they will zone out. The way they choose to zone out is not the issue.

If your employees are averaging 68 minutes a day on FarmVille, you don’t have a social media problem. You have a performance management problem.

What do you think?

As far as I can tell, it is human nature to gripe.

But there can be consequences to public griping, and not just griping via social media. The latest social media tempest is CNN Mideast Editor Octavia Nasr, who tweeted that Grand Ayatollah Mohammed Hussein Fadlallah was “one of Hezbollah’s giants I respect a lot.” She was fired for compromising her objectivity.

A waitress in Charlotte was fired after venting on Facebook about customers who lingered for hours and then gave a paltry trip. She named the restaurant in her post.

But General Stanley A. McChrystal was also fired. He gave an interview to Rolling Stone, a print magazine founded in 1967, in which he criticized his commander-in-chief and the administration’s Afghanistan policy.

I have written previously about ill-considered tweets and status updates. It is easy to get in trouble online.  But as the General McChrystal affair shows, any public comment about your employer can get you in hot water.

The lesson from all of this is that the only freedom of speech granted in the US Constitution is the freedom from the government censoring your political speech. Commercial speech has less protection than political speech, and employers in North Carolina and other at-will employment states have broad rights to fire you for giving your opinion.

They also have the right to sue you for defamation if your comments aren’t true.

This issue gets people hot under the collar. As employment attorneys, we would advise our clients to have current social media policies and follow them to the letter in every case.

You are excited, there’s a new restaurant down the street that has a good buzz.  You’re going. You check in with TriOutNC when you get to the New Neighborhood Pizza Joint (NNPJ).  You send a running commentary on your Twitter feed about your experience, and it auto-posts to your Facebook page:

7:03 p.m. At #NNPJ. Nice atmosphere.  Friendly staff.
7:13 p.m. At #NNPJ. Does anybody want to take my order?
7:17 p.m. At #NNPJ. Anyone? Anyone?
7:35 p.m. At #NNPJ. Grrr… strawberry margarita instead of rocks
7:45 p.m. At #NNPJ. Salads here. Hardly worth the wait.
7:52 p.m. At #NNPJ. H8 it when entrée arrives b4 salad finished.
7:53p.m. At #NNPJ. Crust soggy
7:53p.m. TwitPic of rubbery, congealed cheese.
8:03 p.m. At #NNPJ.  Where’s the check?
8:19 p.m. At #NNPJ. Anyone? Anyone? 

You create a Facebook Page:  1,000 Durhamites Against NNPJ.  Four hundred people join in the next two weeks, and post their own bad experiences. 

Then you are served with a defamation lawsuit claiming your online postings have hurt business and demanding $50,000 in damages, plus attorneys fees. 

What ever happened to freedom of speech?  You have been SLAPPed.

In many cases, online comments are protected opinions or true statements (and as such are not defamatory), but the subject of such criticism files meritless or frivolous lawsuits to try to punish the speaker and get the content taken down. These are known as Strategic Lawsuits Against Public Participation or SLAPP suits. About half the states have anti-SLAPP statutes, which allow a defendant to file a motion and stop the lawsuit until the plaintiff justifies the suit. North Carolina does not. 

SLAPP suits were often used by government officials or businesses against people who wrote critical letters, gave testimony at public hearings or otherwise spoke up.  With social media, however, comments that might have been made to a few people at the local watering hole are now public and permanent.  Businesses have more incentive than ever to remove negative reviews or opinions, and some are using SLAPP suits to shut down online critics. 

Congress is considering legislation to make it harder to file such a suit. A Federal anti-SLAPP bill, modeled after the California anti-SLAPP statute, has been proposed by two Democrateic congressmen, Steve Cohen of Tennessee and Charlie Gonzalez of Texas.

Under the proposed law, a defendant who believes he is the subject of a SLAPP suit can petition to have the case dismissed and have the plaintiff pay his/her legal fees. 

For more articles about defamation, click here.

I’ve written before about being careful about what your social media profile might say to potential employers.  The City of Bozeman, Montana took its vetting process a step further by asking applicants for municipal jobs to provide all login and password information for social networking and blog sites. 

After much gnashing of teeth and wringing of hands in the local and Internet communities, the city re-thought and suspended its policy. 

The city instituted the policy to ensure it was adequately vetting candidates. 

I think people’s social media sites are clearly relevant to anyone having a relationship with the person (employment, business partner, vendor, babysitter, student….). 

While I think almost everyone agrees Bozeman took it too far, what is appropriate information to ask for?  Should business partners, employers or schools be limited to what they can search online by the candidate’s name? Can they ask for your user names?  What about a list of sites where you are active? Should there be a different standard for a clerk and a police officer, teacher or garbage collector?

Here’s an interesting article  from the Harvard Business Review discussing the struggle some corporate executives face with using social media. 

What’s so scary? Many executives fear posting something personal (on Facebook) that might prove damaging. It needn’t be a lampshade on the head, either. Perhaps it’s vacation photos from a second home that looks too opulent at a time when employees are losing jobs. Or maybe their support for a controversial ballot proposition proves a bit too vocal. . .

Obviously it’s never a good idea to post “personally identifiable information” that can lure identity thieves and other malefactors. And only a very careless or foolish person would publish proprietary company information onto a social media site. But what about all the stuff in the grey area–the pictures of you barbecuing at home, gin and tonic in hand? The tweet about the movie you just enjoyed? The link to that Atlantic article recommending an overhaul of the banking industry?

Similarly, companies are debating who should “people” the corporate Twitter account, marketing, executives, CSRs, tech help, etc.. 

Twitter, the microblogging service, which limits posts to 140 characters, has become a favourite of celebrities and digerati. Businesses worried about being left behind are experimenting with using the service to promote themselves. Done badly, the effect can be like watching your grandfather dance at a wedding disco. So should it be left to a company’s marketing department to tweet?

Everyone has a different comfort level about what information to post.  It is clearly a good idea to be cautious, as I’ve blogged previously.  But when we use social media as a relationship-building tool, to do so effectively means we need to put ourselves out there by more than providing the product/service “name, rank and serial number” (and by that I mean, posting more content than mere brand puffery, PR and cliche). 

Personally, I use this blog , LinkedIn  and Twitter most often for business purposes.  On the blog, I try to post legal updates, commentary on legal issues and commentary on issues relevant to small businesses and their owners (like this one).  Each post is an initial remark that is intended to spark an ongoing conversation. 

I connect with new business acquaintances and referral sources on LinkedIn.  Although many people find LinkedIn impersonal and cumbersome, to me it is only the first step in business-relationship building.  I am as active as I can be in groups that match various professional interests, and dialog with people through discussions that often start on the web and continue offline.  As we get to know each other, we develop an actual relationship, outside of LinkedIn. 

I use Twitter to promote the blog and develop relationships with referral sources and potential clients.  I try to keep my Twitter posts relatively business-like and have decided not to post about the whether, what I am eating (unless I am talking about a new restaurant/business in the area) or what my dogs/kids/spouse are up to.  I realize everyone has a personal philosophy about these types of post, and “small talk” tweets often lead to strong relationships.  Again, for me, public tweets are like meeting someone at a Chamber meeting — if I want to know more, we meet for coffee later in the week for a more substantive and personal interaction. 

I have made a deliberate decision to limit Facebook to keeping in touch with actual social friends and family, and not to use it as a business development tool.  Nonetheless, I never post anything on Facebook that I wouldn’t want both my mother and our firm’s Board of Directors to see. 

I’m interested in how other people use these tools.  Where are your boundaries?

Have you seen the prank videos from a couple of bored Domino’s employees in Conover?  Before they were removed from YouTube at the request of the employee who shot it (whether or not she was pressured to do so by corporate), they garnered a million views. 

In it, an employee put cheese up his nose, and farted and sneezed on sandwich fixings he was handling, while the narrator described how those sandwiches were on their way to customers.  He also wiped his butt with a sponge and used it to wash dishes. 

The video went viral and generated a public relations nightmare for both the Domino’s franchise and the local franchisee (owner). The employees were charged this morning with felony food tampering, although they have said that none of the tainted food was ever served. 

There is a lot here to talk about from the business attorney’s perspective, which I will address in a series of blogs:

1. The Power of Social Media
2. Corporate Damage Control
3. Negligent Hiring
4. Franchising

These employees were goofing around.  But imagine what a couple employees with a grudge and a video camera could do to your business. 

The videos were posted Monday, and by Wedneday about a million people had seen them.  It was spread through services like Twitter, Digg, and StumbleUpon.  Readers of a popular consumer protection site that blogged about the video, identified the particular franchise by brief footage shot through the drive-through window, and notified the Domino’s CEO.

Twitter is a service where people “micro-blog” or send 140-word updates (“tweets’) on their activities, interests, opinions, blogs, etc.  Numerous people commented on how gross the video was and “tweeted” to their friends, who presumably then also watched the video and “tweeted” to their friends. 

Digg is a site where people submit news, videos, photos or other online content for other users to vote on (i.e., they “digg” it). More than 6200 people “dugg” the Domino’s video, which would translate into tens of thousands of people being directed to the video just from Digg alone.

StumbleUpon another social bookmarking site, similarly directs traffic to content, and many thousands more likely found the video that way. I’m sure numerous other people shared this video with their friends on Facebook and MySpace. 

Domino’s opened its Twitter account yesterday, but many other companies have successfully used social media to their advantage to respond to customer complaints, launch new products or generate buzz.   

I am not an expert on social media, but I would advise my clients to include social media in their overall marketing program.  These social media outlets have become very powerful and mainstream.  For some social marketing experts take on responding to social media attacks, click here and here. 

Another example of how social media can affect local businesses is Yelp.  Readers post reviews of restaurants, stores, hotels, mechanics, etc.  Until recently, there was no way for a local business to respond to these reviews, but Yelp recently changed its policy to allow business owners to correct incorrect facts.  For example, if someone writes a scathing review of your snail souffle, you can post that you don’t serve snail souffle.  You would not, however,  be able to challenge the opinions that the vegetables were mushy, the service slow or the atmosphere run-down. 

The larger point is to be aware of what your customers are saying.  Word of mouth marketing is very powerful.  And with social media, word of mouth is no longer local.

“Nothing is local anymore,” Domino’s spokesman Tim McIntyre says (in USA Today). “That’s the challenge of the Web world. Any two idiots with a video camera and a dumb idea can damage the reputation of a 50-year-old brand.”

The blogosphere is abuzz this week after a column by Seth Rogan, a well-known marketing consultant, entitled “Personal Branding in the Age of Google.”  Seth explored the results of Googling three housekeeper job applicants:

The first search turned up a MySpace page. There was a picture of the applicant, drinking beer from a funnel. Under hobbies, the first entry was, “binge drinking.”

The second search turned up a personal blog (a good one, actually). The most recent entry said something like, “I am applying for some menial jobs that are below me, and I’m annoyed by it. I’ll certainly quit the minute I sell a few paintings.”

And the third? There were only six matches, and the sixth was from the local police department, indicating that the applicant had been arrested for shoplifting two years earlier.

Liz Strauss, a social networking marketing expert, mused on the potential dangers of out-of-context Twitter comments.  Martin Zwilling of Start-up Professionals explored the wild-west atmosphere of such social networking sites as Facebook, Twitter and MySpace.

We have subjected ourselves to a staggering loss of anonymity, and many of us may not truly understand how we appear online. Parents routinely search babysitters, nannies and teachers. Employers and college admissions officers search applicant profiles.  And that doesn’t even account for other social media risks:  trademark and copyright violations, defamation, invasion of privacy, and wrongful discrimination claims from employees fired for information they disclosed in social media.

I am active on several online communities, including Twitter and LinkedIn.  And before I post anything, I take an extra second to consider whether I would want that comment on the front page of the New York Times, or what my boss or mother would think.  Others sometimes forget that their off-hand comments can have significant repercussions.

As a business lawyer, I strongly urge every company to think about how it wants to use social media  (Twitter, MySpace, Facebook, LinkedIn) as a business tool and to draft a very specific corporate policy outlining how employees should use corporate email, internet, and social media. Or your company may be trying to put the Tweet back in the bottle.