Gruntled Employees

How to get people to do what you want (in six minutes)

2012-04-26T10:02:38-04:00

Here is the six-minute "LexThink .1" speech I gave in Chicago in March at the ABA TechShow. In it, I explain the three simple steps you need to take to get someone to do what you want. LexThink follows the "Ignite" speech format: six minutes, 20 slides, 18 seconds per slide, advancing automatically with no control by the speaker.

Enjoy. And if you want the free Result Triangle worksheet, it's right here. You can print it out and use it right now to help solve whatever problem you're facing.

Facebook privacy, simplified

2012-03-07T12:41:54-05:00

Over at jayshep.com: a simple chart explaining who can read your Facebook comments. Check it out.

Why HR might not want to read Firing at Will

2012-02-29T12:04:49-05:00

Book authors want everyone to read their book. It's a universal law. They spend a year or longer typing and retyping words, and when they're done, they want as many people as possible to read what they've written. And I'm no different.

But it occurs to me that some people may want to avoid my book.

Firing at Will is listed (and intended) as a management book. My publisher (Apress) even included a handy little instruction on the back cover: "Shelve in Business/Management." But so far, in every Barnes & Noble store I've checked, they've filed it under "Human Resources." And I get that, because as much as it is a book for managers, it's also a book for HR professionals.

But HR professionals who read it may be in for a surprise. Because the book takes on many of HR’s long-held beliefs, showing how some common practices harm employee morale and business profitability.

Many of the rules and policies that well-meaning HR professionals and employment lawyers put into place lead to toxic, dysfunctional workplaces. These rules are designed to protect companies from bad employees, but they instead drive away good employees.

Instead, the book promotes doing away with outdated management tools that end up becoming crutches for managers and take away their independence and discretion. For example, instead of sticking with these outdated tools, the book advises employers to:

Throw out your personnel handbook (the title of Chapter 16)
Abandon annual performance reviews (“the dumbest managerial tool”)
Dump progressive-discipline policies
Avoid performance-improvement plans (PIPs)
Stay away from arbitration agreements
Treat employees differently

That last one might be the biggest surprise. Employment lawyers are always telling companies to treat everyone the same. But when you do that, you end up treating everyone equally badly.

HR pros who have grown comfortable with these conventional notions may be put off by the shots taken at accepted wisdom.

On the other hand, there are things in the book that many HR people will appreciate. The book advocates for more responsibility and autonomy for human resources. It favors changing “human resources” to “talent” and elevating the role to the C-suite level: “Every company should have a chief talent officer reporting to the CEO.”

If you're a human-resources professional, or any kind of manager or employer, and you're thinking about reading Firing at Will, please proceed with caution. Some of what you read might be upsetting to you.

And some of it might just change your mind.

To order your own copy, click the following links:

Kindle
Paperback (Amazon)
Nook
IndieBound (independent bookstores)

To read Chapter 1 for free, go to the Firing at Will website and click the link at the top of the page.

The 10 most important traits for job candidates

2012-02-28T15:45:47-05:00

Over at jayshep.com there's a new excerpt from Chapter 17 ("Hiring to Avoid Firing") of Firing at Will: A Manager's Guide. In it, I talk about the ten things to look for when hiring an employee. The better you do at hiring, the less likely you'll need to fire. Check it out.

A Facebook policy for grown-ups

2012-02-24T12:19:01-05:00

Bop on over to jayshep.com to check out a Facebook policy for grown-ups. Feel free to adopt it as your own.

Why corporate Facebook policies are stupid

2012-02-17T10:23:02-05:00

Today we've been talking about social-media policies in the workplace. (See "The twitterable Twitter policy updated" over at my new site, jayshep.) In my recent book, Firing at Will: A Manager's Guide, I covered the legal problems that can crop up when you set out a Facebook policy. Here it is, from Chapter 3, "Risky Business":

Don’t Hit the “Like” Button

Private, nonunionized employers usually don’t need to worry about the National Labor Relations Act or the federal agency that enforces it, the National Labor Relations Board. The NLRB’s purview primarily extends to disputes between employers and unions. But one of the times when the NLRB sticks its nose into the private, nonunion workplace is when an employer creates rules that prevent employees from talking with each other about their working conditions.

Section 7 of the Act gives all workers the right to engage in “concerted activities,” a term that sounds ominous to employers and management. It’s a broad term that usually refers to employees’ getting together to form a union or engage in labor-related activities.

But it can also be used to describe workers’ informally complaining about bosses or pay or other goings-on at work. Employees have a right to do that, and employers—even those in nonunionized workplaces—can’t create policies restricting that right.

This has come up a lot recently with Facebook-related incidents. The scenario is increasingly common: an employee gets into some kind of beef with her supervisor, then logs onto the social-networking site and complains about her boss. The company then fires her. Problem? According to the NLRB, it may well be.

In a nonunion environment, an employer can fire an at-will employee for any reason, including an angry Facebook rant. (And before you start squawking about the First Amendment and freedom of speech, remember this: there’s no such thing as the First Amendment in a private employment context. You need a state actor—a person acting on behalf of the government—to have First Amendment concerns.) But Section 7’s concerted-activity clause creates a type of free-speech protection. And this is where Facebook comes in.

In the rash of recent Facebook cases the NLRB has brought against employers, the workplace was either unionized or the employer created a policy that restricted workers’ concerted-activity rights (or both). Well-meaning employers created policies that prohibit employees from saying mean things about coworkers or supervisors on Facebook or Twitter or some other social-media site. By doing this, the nonunionized employer gave the NLRB a hook to go after it, because a policy like that can be seen as squelching concerted activities among the workers. (One employee bitching about his boss is a terminable offense, but two employees complaining together can be protected concerted activity. Makes sense, right?)

So far, most of these NLRB Facebook cases have ended up with the employers settling to avoid costly and distracting litigation. And in my opinion, the NLRB has been overreaching and outstepping its proper authority. But the main takeaway is that you’d better be careful about creating workplace policies that prevent employees from discussing work. Idle gossip may be a negative influence at the workplace, but trying to legislate it away with policies may get you into hot water.

Got employees or managers? Then you need this book. Seriously. Order your copy today from Amazon. Need more convincing? Check out the book's website and read a whole chapter for free.

The twitterable Twitter policy updated

2012-02-17T08:23:44-05:00

I wrote the post nearly three years ago here, but it keeps popping up in social-media circles. So I decided it was time for a little updating. Check out "The twitterable Twitter policy updated" over at my new site, jayshep.

One word that will reinvent how you serve clients

2012-02-13T12:32:25-05:00

Want to know what that one word is? Here are two easy ways to find out:

Go grab your nearest unabridged dictionary. Turn to page one. Start going through each defined word one at a time. You'll get to it eventually. (OK, maybe that’s not so easy.)
Go to the LexThink.1 site and vote for my proposed talk, “One Word That Will Reinvent How You Serve Clients.” Just click on the handy "vote" icon (see image).

Voting ends February 24. There are 23 other proposals from a rogue’s gallery of big legal thinkers, and only the top 12 will be selected. Your vote will make a difference.

Then come to the ABA TechShow in Chicago starting March 28. The LexThink.1 program is Wednesday night at 6:30 CDT. You can sign up for free tickets here.

So what is LexThink.1? Well, it’s an evening of very short presentations with a challenging constraint: 20 slides, 18 seconds a slide (equaling six minutes exactly, or 0.1 to you lawyers who still use timesheets). The speaker has no control over the slides, which keep advancing like sands in the hourglass (or something) every 18 seconds. It forces the speakers to keep it brief and pithy, and to leave home all the boring bits. It’s inspired by Japan’s Pecha Kucha Nights, which allows a luxurious 20 seconds for each of the twenty slides. This is its third year; it was previously called "IgniteLaw."

To see an example, here is my talk from last year: "Quantum Leap: How You Will Practice Law in 2019."

No matter which proposals get chosen, it promises to be an amazing event. Hope to see you there. And thanks for the vote!

The dumbest managerial tool: annual performance reviews

2011-12-29T16:37:24-05:00

A recent article in The Wall Street Journal discusses some of the problems with annual performance reviews and how a few companies are abandoning them. In the article, ("Performance Reviews Lose Steam," Dec. 19, 2011), Rachel Emma Silverman mentions that even HR professionals recognize the flaws in the system:

Performance reviews have long received poor grades, even from those who conduct them. Nearly 60% of human-resources executives graded their own performance-management systems a C or below, according to a 2010 survey by Sibson Consulting Inc. and WorldatWork, a professional association. And one academic review of more than 600 employee-feedback studies found that two-thirds of appraisals had zero or even negative effects on employee performance after the feedback was given.

Silverman writes that about one percent of companies are ending the practice, citing a report of the Corporate Executive Board. Well, it's a start, I guess.

In Chapter 8 of Firing at Will, I discuss annual performance reviews at length, calling them "the dumbest managerial tool." Here's why:

First of all, emphasizing that employees’ performance should be measured on an annual basis suggests that there’s less reason to measure it on a more-frequent basis. That’s insane. First of all, who can possibly remember how a particular employee was performing ten or eleven months ago? So what ends up happening is that the past month or two get undue weight in the “annual” evaluation.
Second, if the purpose is to correct poor performance or behavior, why would you wait till the end of a year to do that? Performance and behavior issues need to be dealt with when they arise, not saved up till the end of an arbitrary twelve-month period. Similarly, if the appraisal is intended to reward good behavior or performance, why in the world would you wait? “Hey, Alice. That thing you did back in March was terrific. Way to go.” Alice: “Huh?”

Third, if the purpose is to tie the evaluation to a decision about a possible pay increase, that’s also foolish. In a well-run and well-managed company, pay decisions should be made on the basis of the employees’ individual contributions on an ongoing basis, not based on the mere fact that they avoided attrition for another calendar year.

My fourth problem with the annual basis is that managers tend to blow it on the timing. I always did. An evaluation that was intended to go out in early January would just as likely get finished in late March. That’s normal, because managers usually have more-important managerial tasks to accomplish, like running the actual business.

The problem is, if you tell your employees that you’re going to do annual performance appraisals in January, they’re going to expect to receive them in January, along with some sort of a pay raise. When January slips into February and then March finally comes around, those employees are going to be unhappy with you, even if they know you’ve been busy doing real work.

Companies end up using performance reviews as a crutch in place of actually managing their employees real-time. In fact, the reviews do more harm than good. Don't be part of the 99%. Get rid of annual performance reviews, and instead teach your managers to manage.

A Lousy Christmas Present

2011-12-23T16:50:28-05:00

From Firing at Will, Chapter 6, "How to Fire an Employee":

One consideration that’s worth keeping in mind is the broader time frame. For example, it’s never a good idea to fire someone right before Christmas. That then becomes the story: “Those bastards fired me two days before Christmas.” That never sounds good, and it may actually increase the risk of a lawsuit.

Other days to avoid: The employee’s birthday. The day after her mother dies. The day after the Red Sox win the World Series. The basic rule here is this: be sensitive about the timing, but don’t worry about the “rules” about times and days.

Throughout the book, I talk about the need to fire a problem employee once you know that he or she is never going to work out. But there are exceptions, and Christmastime is one of them. Yes, I know it's the end of the year, and maybe there are tax or accounting implications. But don't do it. Either plan ahead and do it in November, or wait until a couple of weeks into the new year. Don't make the story "I got fired at the holidays."

Speaking of holidays, it's not too late to get a copy for your managerial loved ones' digital stockings. You can pick up the Kindle version here and the Nook version here. And if you want to go old school, the paperback version is available from Amazon here.

Managing face to face

2011-12-22T08:27:15-05:00

New Red Sox manager Bobby Valentine, speaking on WEEI's Mut and Merloni Show about why he prefers talking to his new players in person instead of over the phone:

'Talking on the phone is only one step up from communicating by a letter or Twitter or the Internet,' he said. 'There’s nothing like — you know what I mean by this, Lou — talking with your body and your heart and your eyes and your hands, as we Italians do. I think most of the communication has been a cordial one, one that says I’m really looking forward to really establishing a line of communication and really working and really enjoying and and trying to find what I could do to make these guys as good as they can possibly be.'

Frankly, it has nothing to do with being Italian. Almost everyone communicates more effectively face to face than over the phone (and even more so compared to email or letter). That's because human beings take in a ton of tacit information by seeing facial expressions and body language. Employees are less likely to misunderstand your words when delivered with the context of these nonverbal cues.

All managers should listen to Valentine here. Whenever possible, talk to your employees in person.

via fullcount.weei.com

Millennials don't want 9 to 5

2011-12-22T00:54:37-05:00

Dan Schwabel writes at TIME.com that millennials are forcing employers to think differently about how they structure the workforce:

Aside from the early adopters of workplace-flexibility programs, many other companies are hesitant because of the traditional “command and control” approach laid out for older generations. The challenge these companies face is letting go and trusting their young employees — even when they are telecommuting or using Facebook regularly at work.

Many companies fear that, without structure, employees will be distracted, not as engaged and less productive. In fact, the opposite is often true. A trusting work environment breeds more-loyal employees and increases efficiency.

via moneyland.time.com

Firing at Will listed as "Hot New Release"

2011-11-27T13:51:52-05:00

As many of you now know, my new book Firing at Will: A Manager's Guide was published by Apress last week. It's an unlawyerly guide to the riskiest thing you can do at work with your clothes on: firing employees.

So far, so good. Amazon is currently listing it as number 7 on its Kindle list of "Hot New Releases in Business Management & Leadership." (It's right behind the Steve Jobs biography. No, not that Steve Jobs biography. The other one.)

You can order the Kindle version here, the paperback version here (convenient for stocking stuffers), and the Nook version here. If you have any friends or family members who are managers, supervisors, or employers, Firing at Will can make their lives 37 percent easier (that number completely made up; your mileage may vary).

Checking on the spider

2011-10-23T18:29:00-04:00

One of the benefits of closing my law firm and working out of a home office is that I'm there when my daughters get home from school. And because of this, I discovered a ritual that's been going on for quite some time without my knowledge.

My youngest daughter, Samantha, who's eight, gets off the school bus every day near our house and races to our front patio. Before she goes to the door, though, she stops and checks the bushes next to the patio. For months now we've had this ginormous spider living in the bushes building this incredible web. It's big: one of these days I expect to see that it's caught a squirrel or maybe the neighbor's poddle for lunch. (Take a look at the photo. The spider is the huge brown blob on the left. Click the photo to biggify.)

Every day, Samantha stops, looks for the spider, makes sure it's still alive, checks out the progress of the web, and sees what other unfortunate critters it has caught. Then, satisfied, she comes into the house and tells me about her day.

Managers could learn a lot from this spider-checking process.

Too many managers rely on performance appraisals and timesheets to see how their employees are doing. They would be much better off getting out of their offices every day and checking in on their employees rather than waiting for the employees to come to them with their problems.

When I would tell other lawyers that I had gotten rid of timesheets in my firm, they would always ask me, in outraged or incredulous tones, "Then how do you know if your associates are working?" And I would smile calmly and say, "By managing them." I'd explain that I'd go around and check on my lawyers and see how they were coming with their various jobs and projects. This would give me much more information than looking at an entry that said, "4.3 hours — Attention to brief."

Managers: go out and check on your spiders every day.

Fist-bump fireworks and other employee metrics

2011-10-23T17:34:17-04:00

Managers often struggle with how to measure employee performance. It's natural to shy away from purely subjective ways of judging how well your employees are doing. It's much easier to have an objective metric that you can just look at to track your workers' results.

Ironically, employers generally base their hiring and firing decisions on primarily subjective opinions about the employees. But when it comes time to actually manage them, employers long for something they can look at in a spreadsheet. Law firms, accounting firms, and other professional-knowledge firms are the worst offenders, using the timeworn metric of billable hours to substitute for subjective evaluations of performance.

Many employers use annual performance appraisals to rate employees' performance. They figure that it's easier to check off a few boxes and plug in a few pat phrases than to actually (and subjectively) evaluate performance. In Firing at Will, I describe the annual performance appraisal as "The Dumbest Managerial Tool." To find out why, and to learn about better alternatives, check out the book. (It's in Chapter 8.)

Many employers have asked me how to measure performance if they don't use billable hours or annual performance appraisals. The answer I give them is to look around their business, figure out what really matters, and measure that. Professional-services visionary Ron Baker devotes an entire book on the subject called Measure What Matters to Customers: Using Key Predictive Indicators (affiliate link). In it, Ron talks about the sort of KPIs that professional firms could use, such as turnaround time (which is really the opposite of billable hours), innovation sales (selling new services), customer loyalty (retention rates), share of customer wallet, and others. (Ron prefers "key predictive indicators" to the more common "key performance indicators" because the former is forward looking.)

At Shepherd Law Group, we unintentionally developed a way of recognizing whenever one or more of our lawyers had a successful client outcome. It didn't matter what it was: winning a discovery motion, landing a new client, settling a case. We would note the successful event by exchanging "fist-bump fireworks." This was a goofy ritual of exchanging fist bumps followed by a slow descent of wiggling fingers to connote fireworks. This came from a silly but memorable McDonald's commercial. (I've looked all over the web to find it, but was unsuccessful.)

Although we never put this into practice, we could have tracked FBFs — either as a firm or by lawyer — and charted our performance. Naturally, a greater number of FBFs per month or per quarter would be a positive result. This might sounds like a silly performance metric to you. But as the saying goes, "You can manage what you can measure." Measuring FBFs or other key predictive indicators will help you manage toward having more occasions for them.

What KPIs could you institute in your company? Share them in the comments.

So I've been writing this book

2011-10-23T15:05:51-04:00

I'll be honest with you: I've never been a fan of people who abandon their blogs for a few months and then come back with a lame explanation of how busy they've been. So I'm reluctant to do that here, knowing how long it's been since I've posted. But I do feel the need to give you an update and explain how I'm taking Gruntled Employees to the next level.

First and foremost, I wrote a book for managers and employers that embodies the Gruntled Employees philosophy. It's called Firing at Will: A Manager's Guide, and its tagline is "An Unlawyerly Guide to Management's Riskiest HR Decision." It's being published by Apress and its official publication date is November 22, although it may come out a couple of weeks early. You can check out the book's website, its Facebook page (click "Like" if you're so inclined), and you can preorder it from Amazon.

I've described the book's topic — firing employees — as being the riskiest thing you can do at work with your clothes on. Even though it's a book for employers and managers written by a management-side employment litigator, it's actually very much a pro-employee book. Because as longtime Gruntled readers know, how well you treat your employees is the biggest factor in how well they'll perform — and in how likely they will be to sue you. As the book says, people don't sue people they like.

The book's style will be familiar to Gruntled readers. I had no interest in writing a book that sounds like the back of a rental-car agreement. There isn't a hereinafter or a pursuant to in the 300 pages. In fact, it was this blog that led the publisher to reach out to me and suggest the project.

Besides writing the book, another major change this year has been the decision to close Shepherd Law Group after 13 years and step away from practicing law. As much as I loved the practice — giving advice to employers and standing up for them in court — I felt it was time to bring my message to a larger audience. As a practicing lawyer, I was only helping one client at any given moment. By writing and speaking, I can help many more employers at the same time by teaching them how to improve their workplaces. And the best way for employers to do that is by freeing individuals to do their best work.

One area where I'm trying to help employers is in pricing professional services. Specifically, I want to teach law firms, accounting firms, ad agencies, consultancies, design firms, and other professional companies how to price their knowledge instead of billing for time. I've formed Prefix, LLC to focus on this, and I write about the topic over at The Client Revolution.

So now you're caught up. Please check out the book when you have a moment. And thanks for reading.

Cosmic Law and social media

2011-02-25T14:16:42-05:00

So I'm having a #LegalChat this morning on Twitter, and the subject of …

Pardon? Oh, what's a "#LegalChat"? It's an open conversation on Twitter where people can choose to participate and discuss a particular topic by tweeting something and adding the hashtag #LegalChat at the end of the tweet. Or you can just lurk, and read the different entries without adding your own. (Nothing wrong with that.) You don't need to be invited, and the group is obviously self-selected. But only people who are interested in the topic would bother.

Today's #LegalChat was about the legal implications of social media — a timely topic. (See "Vote 'Yes' on social-media law.") An incredibly bright bunch of social-media experts and lawyers joined in with questions, answers, and tips. One of the recurring themes was how to help companies and individuals protect themselves while using social media — short of abandoning it altogether.

Since I've written here about my antipathy toward draconian social-media policies, I thought I'd share my take on how social-media users should protect themselves. Here's what I tweeted on the #LegalChat discussion:

@VMaryAbraham: SM users can protect themselves by assuming that the wrong people will see what they write. It's cosmic law. #legalchatless than a minute ago via TweetDeckJay Shepherd
jayshep

[@VMaryAbraham is the well-respected blogger, lawyer, and knowledge manager who asked the question.]

Since I have more than 140 characters here, let me explain:

The advice I give people using social media — or anything that's written electronically — is to assume that the person you most want not to see it … will see it. (This is actually a corollary to our firm's First Rule of Litigation: The other side will always learn what you most want them not to learn.) Over 17 years of employment litigation, I've seen it happen too many times not to believe that it is actually Cosmic Law (or at least an offshoot of Murphy's Law).

All too often, people either (1) don't even think about the possibility that the wrong people will read what they've written, or (2) underestimate the likelihood that it will be seen. Either way, they end up with the embarrassment (or worse, the litigation) that comes from the wrong people reading the wrong things.

Never assume that people won't find what you've written. Lawyers can be pretty smart, and we can often find things that you think you've hidden. (See my recent Above the Law post, "Social Media and Breast Implants.")

If you follow Cosmic Law, then there's no need to avoid social media or be burdened by restrictive social-media policies.

What do you think? Is following Cosmic Law enough? Do you think it isn't Cosmic Law? And when exactly is the Cosmic Law bar exam?

Vote "Yes" on social-media law

2011-02-24T18:13:41-05:00

It's kind of exciting to witness the birth of a new area of law. (OK, maybe it's only exciting to lawyers. Look, we need the excitement, all right?) When new things arise in society at large, the law has to play catch-up. Thus the civil-rights advances in the 1960s led to discrimination law. The rise of the Internet in the 1990s led to a brand-new area of Interwebs law. Terrorism at the turn of the century led to a body of terrorist-related law (not to mention the whole PATRIOT Act). And so on. Since law is an industry that tends to favor precedent and authority over innovation, it can take us a while to get our act together.

Now it's social media's turn. Over the past five years, it has become clear to even the most Luddite of lawyers that social media is not a fad, that it's here to stay, and that it's rife with issues that will eventually involve lawyers. Which means we're going to need an area of law called social-media law. (Yes, with the hyphen. When you use it as a phrasal adjective before a noun, you hyphenate it. End of lesson.) And which also means we're going to need social-media lawyers.

[Important aside: I am not advocating that we need to hyperlegislate social media, and I am not saying that it's a good thing that we need lawyers in this area. It's just a fact. When humans interact, they get into disputes. You can choose to resolve disputes with lawyers, or you can resolve them with fisticuffs. Your call. Plus it's hard to punch people over the Internet.]

Right now, with a vacuum in the area of social-medial law and a dearth of social-media lawyers, employment lawyers are stepping up to fill the void. Unfortunately, most of them are taking what I call the "No" approach. These are the folks who are drafting blog policies like Harvard Law School's. (See "A two-word corporate blogging policy.") And LinkedIn policies that try to prevent departing employees from keeping their own contacts. (See "Who owns an employee's LinkedIn contacts?") And Twitter policies designed to, well, keep people off Twitter. (See "A twitterable Twitter policy.")

[By the way, Doug Cornelius (@dougcornelius) has accumulated an amazing database of well over 200 social-media policies on his Compliance Building blog. Most of them are exactly what I'm talking about — written in the "No" approach.]

As employment lawyers, they know all about drafting employee policies. But more often than not, they don't know much about social media. Which is a problem. When I see an announcement for a lawyer seminar on social media, I check out the bios of the lawyers presenting to see what their social-media creds are. I look to see what their blogs are called, how many Twitter followers they have, and how active they are on LinkedIn. What I usually find is nada. No blogs, no Twitter. No Klout score. Maybe a perfunctory listing on LinkedIn. In other words, they're not exactly social-media mavens.

[Quick note on Klout: By mentioning this new social-media "scoring" site, I'm not saying that it has any particular importance. It's just one company's way of measuring an individual's traffic on the Interwebs. For a decent introduction to Klout, read this article by The Boston Globe's Beth Teitell, "Ascent of the social-media climbers."]

And if they're not active in social media, they're much less likely to understand what makes social media the human phenomenon that it's become. Which means that they're more likely to tell their corporate clients that they should fear social media, and that they need prohibitive policies to minimize the chance of Very Bad Things happening.

I for one prefer the "Yes" approach. Yes, social media is here to stay. Yes, employees are going to tweet and Facebook and make connections with people on social-media sites. Yes, these employees can act as effective brand ambassadors for their companies, and they should be encouraged to do so. Yes, sometimes Bad Things relating to social media might happen, but we'll deal with them. We don't need draconian policies to prevent people from acting like idiots. People are going to do that from time to time anyway. Why throw out the good along with the bad?

If you have a company who wants restrictive social-media policies to prevent your employees from connecting with other people over social media, absolutely do not call me for help. (Or fax me. Or telex me, or whatever you guys are still using for communications.) You're not going to like what I'm going to tell you anyway.

But if you have a company and you understand that social media is a way for your company and your people to interact with the world, and you want guidance in this new area of social-media law, call me (617.439.4200). No, better yet: reach out to me on Twitter (@jayshep) or LinkedIn. I look forward to connecting with you.

• • •

Update Right after posting this, I noticed an article on Inc. magazine's site, "How to Avoid a Social Media Lawsuit." (Yeah, no hyphen; right off the bat, you know it's suspect.) It pretty much proves my point. All kinds of "No" approach here. Even worse is an older linked article called "How to Write a Social Media Policy." Besides advocating that companies consider eighteen different policies, it also recommends a $149 "social media policies toolkit" so that you can roll your own. Yeah, you should definitely do that. If you're an idiot. Unbelievable. [Hat tip to @kevinokeefe.]

Who owns an employee's LinkedIn contacts?

2011-02-13T19:48:42-05:00

Or Facebook friends? Or Twitter tweeps? If an employee is using these social-media sites in his or her professional capacity, does the employer have the right to take the contacts away once the employee leaves?

The correct answer is: shut up.

Seriously. If you're an employer or a manager and you're seriously asking these questions, you just don't get it when it comes to social media. You're missing the whole point of these social-networking sites.

Now pause for a minute before you go ballistic on me in the comments below. Remember: I'm a management lawyer. I'm on your side.

But the whole point of having your employees on these sites is to broaden the reach of the company's brand. Making connections with other people — customers, prospects, vendors, referral sources — by combining the employees' personalities with your company's brand identity is what it's all about.

And there's a trade-off here. Your company's brand reputation (ideally) helps your employees raise their own personal stature online. But if they leave your company, voluntarily or not, they have that stature to take with them. And there's nothing you can do about it. That's the implicit bargain you make with your employees when you use them as ambassadors for your brand.

That's why it drives me batspit crazy when I see other employment lawyers sounding alarms of doom and drafting small-minded policies about retaining social-media contacts for the company after the employee's departure. See, for example, "Who owns the salesperson's LinkedIn accounts?" Or a similar article here. There's even a discussion on this at LinkedIn itself.

Seriously, cut it out. If employees put themselves out there in cyberspace, even on the company's behalf, they can take their online connections with them when they leave. If you can't abide that, then maybe you do need a policy barring social media. Just don't come to me for that, because you're not my kind of employer.

On the other hand, if you're the kind of enlightened employer who sees the real value in having your employees connect with people who might lead to more business, and you understand that there's always a risk that those contacts will leave with your departing employees, then definitely give me a call. We're kindred spirits, and I can help you.

One more thing: Much of my legal work involves noncompetes and trade secrets. And one of my favorite tools for investigating whether a departed employee is violating agreements or stealing trade secrets is searching through social-media sites. Just because I sound all "Kumbaya" about social media doesn't mean that I won't use it like a hammer to win a lawsuit. (Just sayin'.)

What do you think? Does your company have LinkedIn policies about whose contacts are whose? Do you think you need them? Sound off in the comments.

500,000 reasons to worry about retaliation claims

2011-02-06T03:34:54-05:00

Good news, you're thinking. Your company's just been sued for sex discrimination, but your lawyer tells you that her discrimination claim stinks. You're almost certainly going to beat it. W00t! Squee!

Not so fast with your w00ts and your squees. As employment lawyers, we see this scenario play out far too often. Company gets hit with a weak discrimination claim. Turns out something bad happened to the plaintiff after he or she complained about the bogus discrimination. Wa-bamm! Now the company's stuck defending a much stronger retaliatory-discrimination claim.

This happened the other day here in Boston. The state's Probation Department faced a sex-discrimination claim (among other things) from an assistant chief probation officer. The case went all the way to a jury trial, which is unusual (less then one percent of these cases try). The Suffolk County jury found in the Department's favor on the sex-discrimination claims, but ruled for the plaintiff in her retaliation claim. It awarded her $6,000 in compensatory damages, and … wait for it … half a million dollars in punitive damages. Plus, now she's entitled to her attorneys' fees.

Now to be fair, the Probation Department has been having a bad year as the subject of daily newspaper stories about corruption and patronage. (For The Boston Globe's extensive coverage, click here.) But the lesson is still an apt one. In this case, after the employee complained of sex discrimination, she was stripped of supervisory duties and reassigned to cover the front desk. In its defense, the Department said that her performance had declined. Maybe it had. But that's a weak defense in a retaliation claim. (For more coverage of the case, see Marcella Bombadieri's piece in the Globe.)

Employers: When you're facing a potential discrimination lawsuit, you have to be extra careful to avoid doing something that could end up giving the employee a much stronger retaliation claim. It's a delicate situation to be in, but the wrong actions by the employer can be just the thing that the plaintiff needs to end up with a windfall.

For tips on how to treat a complaining employee, tweet or direct-message me at @jayshep, or send me an