SOCIAL MEDIA: The Rules of the Online Game – Part I

By: David J. Lynam

Lynam & Associates, Chicago and Barrington, Illinois

            Employers and workers alike know that “social media” has become a buzzword used to encompass everything from marketing strategies to what employees are wasting time with at work. While most people know the basics of social media, like the sites and what they can do for you, most people don’t realize that there are rules for what you post, who you post to, who you search and what you can control.

Although social media interactions mostly take place in the online world, there can be very real benefits and consequences for any employer, including claims of defamation and/or discrimination based on the business’s use of these sites.  In addition to employers and business owners, employees can face embarrassment, discipline, and even termination for doing the wrong thing on a social network.  For example, it was just reported that Apple, Inc. – which has strict rules regarding online comments by its employees – fired a store employee for making unflattering comments about Apple on his Facebook page.

This two-part series will examine the benefits and the rules for social media, including Facebook, Twitter, and online review sites. In this Part I, we will discuss the benefits and rules from the employer and business owner standpoint, describing what you need to know about online marketing, interactions with employees, and online reviews. Part II will view the benefits and procedures from an employee’s perspective.

Marketing and Benefits

Despite the rules that apply, using social media is an integral part of doing business today: employees and clients – both current and potential alike – look to your online presence just as they do your in-person presence. Company profiles on Twitter, Facebook, and LinkedIn can be a resource for potential clients and potential employees, as well as a useful forum for you interact with each of these groups.  However, as in print media, any marketing and information provided via online social media must be truthful and not misleading. Most social media sites have their own policies and rules regarding promotions and content that you may post, which you should always review before utilizing the sites. Additionally, you should monitor the privacy functions of these sites and determine whether you want employees, clients, and/or the general public all viewing the same content, or whether you would like to specify what content specific groups should be allowed to access.

Are you “friends” with your employees?      
            
Employers must know the rules before utilizing any benefits of social media. As little as five years ago, employers may have safely assumed that social networking was only an issue with employees under the age of 25. However, Pew Research Center has reported that the use of social networking sites like Facebook and Twitter has increased 100% in last year for those 65 and older, meaning 1 in 4 of that age group now have an account. These sites currently account for 25% of all time spent online in theU.S., making social networking the number one web activity. As such, social media is no longer something that employers and business owners can ignore.

An employer may initially wish to completely control or prohibit its employees’ online comments and interactions in an effort to avoid any possible problems. However, not only is total control or prohibition implausible, the courts have also ruled it to be illegal. Just as the National Labor Relations Act prevents employers from keeping their employees from meeting outside of work to discuss working conditions, the courts have found that employees “meeting” online and talking about working conditions in any form, even in a Facebook post, is protected labor speech. As such, there are guidelines employers should follow when it comes to regulating employees online conduct.

First, there should be a written policy circulated to and signed off on by every employee. The policy should detail what is and is not acceptable social networking behavior for employees. Your business has every right to ensure your employees’ online profiles do not reflect negatively on your company. In addition, the policy should make sure that certain information – including names of your company’s customers, any protectable trade information, and/or confidential client information – is kept confidential. The policy should address the fact that the company’s anti-discrimination, anti-harassment, and confidentiality policies still apply to employees when they are online, even during after work hours. Keep in mind, though, that while some employer rights are retained, the policy cannot be so broad as to prevent any discussion of work.

Once a policy is established, employees should be given a chance to review and ask questions on what will be considered proper and what could lead to discipline.  Ideally, there should be a way for employees to report possible problematic activity and request advice as to appropriateness before posting on social media sites.

In addition to developing a written social networking policy for employees, beware of how you access your employees’ online identities. You should disclose who you are if “friending” an employee, and should never sign on to an employee’s profile, whether or not you have permission to do so. While it may be tempting to see how an employee acts when the boss is not around, courts have considered some aspects of online profiles to be private, and you may be violating an employee’s rights by accessing his or her site.

Finally, while employers are allowed to perform online research on any prospective employee before hiring, they still must follow all anti-discrimination policies and ensure that (1) the research does not violate the prospective employee’s privacy rights, (2) the research is accurate, and (3) certain protected characteristics which can be discovered on these sites, such as race, do not enter into the hiring decision.

Online Review and Rating Sites        

Employees are not the only important social networking presence.  Whether or not you actively maintain an online presence for your business, one is likely being built; a presence that is extremely important and can be viewed by any potential customers or employees.

While every business owner knows that word-of-mouth recommendations are useful for business, the new reality is that a Tweet or a Yelp review could be just as useful, if not more. The Washington Post reported a study by Michael Luca of Harvard Business School showing that a rating increase of one star on Yelp (an online rating and review site) leads to a 5-9 percent increase in revenue. While restaurant or store reviews and choices may be one thing, the use of online reviews in professional fields has also increased as people grow more comfortable in trusting online reviews and ratings.

An employer or business owner should not only regularly review what is being said in online reviews, but should know that there are some ways to control what is being said – and also some ways to get in trouble in this area. As an employer or business owner, you can use tools such as Google Alerts to keep up with what is being said about your company online and to use existing reviews – both positive and negative – to assess how your company is doing.

If you see that your company’s status is either not what you would like to see or is non-existent, there are some ways to encourage customers to provide reviews. The best course of action is to kindly ask your satisfied clients to take the time to write a review. However, be aware that there are potential legal pitfalls to asking people to post favorable reviews for your business. The Federal Trade Commission has stated that as with any product endorsement, it must be clear if the reviewer/blogger/rater has been paid or has any connection to the company.  This means that you cannot give cash to customers to write a positive review, nor can your employees pose as customers online without disclosing their status.  These rules extend to any promotion of your products, so if you decide to tout a product of yours on an industry message board, you must disclose your affiliation with the company.

One inescapable reality of online reviews is that some are bound to be negative. If you are concerned about the number or seriousness of negative reviews of your company, most online review sites will allow you to directly respond. In addition, some review sites require some verification of truthfulness and you can demand the removal of any false statements. Our law firm has had success in obtaining the removal of negative statements on behalf of clients, which can be laborious. Otherwise, there is frequently little that can be done about truthful negative opinions other than having thick skin and ensuring that there are offsetting positive comments and reviews.

Conclusion

The best advice is to view your actions on social media sites just as you would any in-person interaction: if you would not rifle through a future employee’s private information in person, don’t do it online; if you would not pose as a satisfied client to lure in future clients, don’t do it online; and if an employee is allowed to make the comment while talking to co-workers outside of work, they may be able to make it online.  Working with legal counsel to develop an appropriate social networking policy and consulting legal counsel when using a new online marketing strategy will help a business utilize all that these forums have to offer, without running into an unanticipated and costly lawsuit.

David J. Lynam is Principal of Lynam & Associates (www.lynamlaw.com), which has served its clients since 1990. The firm represents small and mid-market U.S. and international for-profit and nonprofit companies form its offices in Chicago and Barrington, Illinois.  David is a graduate of the Loyola School of Law, attended the Hague Academy of International Law, and is admitted to practice before the Illinois Supreme Court, the U.S. Supreme Court, and the U.S. Tax Court.  He gives professional legal education lectures on a variety of topics, is an author on contracts, professional liability, employment law, trademark law and other legal issues.  His firm also publishes the Illinois Business and Tax Law Blog, which can be viewed at www.lynamlaw.com/blog.  David is a member of the Chicago Bar Association, co-chair of the Entrepreneur Group at the Union League Club, was recently appointed to the membership committee of the Small Business Advocacy Council and serves on the Estate and Gift Tax Committee of the Illinois CPA Society.  You may contact the firm at firm@lynamlaw.com or 312.641.1500. 

10 Tips for a Successful Lease Negotiation

By: Bill Himmelstein, Tenant Advisory Group, LLC

Once you have negotiated the business terms of your lease, be it for a renewal or relocation, there are a number of items to address to help you with your legal terms negotiations. Below is the list of Top 10 tips I share with my clients. While this list should not replace having a qualified, experienced, real estate attorney review your lease document, it will give you and your attorney a good idea of the subtle ways a landlord may try to take advantage of his or her tenants. (Luckily, after reading this post, you will be armed to ensure you have a fair legal document.)

1.      Business terms - Double check that the business terms agreed to in the Letter of Intent are the same as in the lease document.

2.      Sublease clause - Reasonable consent should not be withheld by your landlord. Your landlord will ask for 100% of profits. A 50/50 split is fair. Seek to minimize notice to your landlord and response time from your landlord. Consent shall not be necessary for purchase, sale, or merger.

3.      Hold-over clause – If you occupy your space beyond the lease expiration, your landlord will ask for a penalty of 200% of the then escalated rent. However, based on my 12 years of experience negotiating commercial leases, I assure you that 150% is the fair market amount.

4.      Renewal Clause – Your landlord may ask for automatic renewal if you don’t give notice. This is not acceptable. It’s nice to have ongoing rights to your own space. Negotiate the rate when possible as it will still be negotiable at that time. If the renewal rate is above market, you can still negotiate it down.

5.      Work letter - This should be studied closely to make sure everything matches up to what your landlord said he was going to deliver. If there is an allowance, base building items (ie. electricity and HVAC stubbed to premises, dropped ceilings, dry wall) should be taken care of by the landlord. If the landlord is handling construction, make sure he or she is liable if the work isn’t completed on time.  

6.      Right to Terminate – This can be a great source of leverage to restructure your lease regardless of how the market has changed since execution of the lease.

7.      Surrender of Premises – Your space shall be returned in “broom-clean” condition, nothing more. Your landlord may ask for the space to be returned to “white box.” That is unacceptable.

8.      Taxes and Operating Expenses – It’s important to make sure capital improvements are not passed along to you, the tenant, through operating expenses. If you’re going to sign a gross lease, there should be a Base Year.

9.      Insurance requirement – Make certain you have a qualified insurance broker review all coverage requirements. 

10.  Damage or Destruction by Casualty - Seek to minimize the time in which your lease can be terminated, and seek to maximize the remedies available to you as a tenant.

Unfortunately, in all types of business, there are people whose goal is to make as much profit as possible, as opposed to offering a solution to suit all parties involved. The 10 tips listed above should help ensure that you end up with a lease negotiation that leaves you looking forward to staying in your existing space or moving into a new space.

Bio

William Himmelstein started Tenant Advisory Group, LLC, in July 2008. Bill has been a tenant representative broker for over 12 years and focuses on working with professional service firms and private practice physicians. In the past 18 months, he has negotiated more than $30 million of transactions and has saved clients more than $8 million on leasing costs. Contact Bill directly at: Bill@tenantadgrp.com.

Sharpening Your Ax: Four Successful Steps of Preparing for Productivity

By Anthony McGee, JD/MHIRIR, MUP, MSA
     

Larry an executive lumberjack walked past one of his new employees. The recently hired lumberjack fiercely axed away at the largest tree; however, he barely bruised the bark. After watching the hard work and futile effort, Larry the executive lumberjack said, “Why don’t you sharpen your ax? It will make you much more effective.”

Clearly, when Abraham Lincoln said “give me six hours to chop down a tree and I will spend the first four sharpening the axe” he was magnifying the connection and correlation of preparation and productivity. With all great leaders, proper preparation is an essential element of their DNA or modus operandi. Moreover, prodigious leaders accomplish most of their task, missions and assignments with a more expeditious and effective manner. Similar to Larry’s employee, everyone needs to know how to sharpen their Ax.

Sharpening the Ax is preparation. Preparation is indispensable to a wise worker. It is the difference maker between being productive and exerting unnecessary energy on a task. Moreover, it is assistance in guiding the course of the team, organization or community.

The following are Four Successful Steps of Preparing for Productivity:

1. Philosophy:  Preparation helps you develop the right philosophy. Correct and proper thinking is essential for needs analysis. Philosophy may determine whether it is wise to use an ax or chainsaw. In addition, your philosophy defines your passion and directs your vision. Moreover, the decisions that are critical towards productivity may also delineate the cost effectiveness of today’s assignments compared to tomorrow’s growth. Thus, it’s wise to consider the fundamental doctrines that underlie the formation and operation of how each employee, team, division and community thinks. Undoubtedly, a reliable think tank or master mind group may be a viable investment to sharpening your Ax.
   
   
   
2. Attitude: Preparation helps you develop a productive attitude.
   
   Once your business philosophy is defined and established, you must launch a positive, creative and productive attitude. The proper attitude is an essential ingredient/fuel to preparation. And, it allows you to work at energy peaks. In addition to developing clear goals and objectives, attitude also contributes in SWOT analysis which is used for determining strengths, weaknesses, threats and opportunities. Thus, the accurate attitude attached with the audacity to seek opportunity is a defining factor for sharpening your Ax.  

3. Activity: Preparation affects every step of a sale, performance and activity. Everyone should be intensely action oriented because philosophy and attitude without activity is dead. Seneca said: “Luck is what happens when preparation meets opportunity.” However, the external mechanism of preparation is arguably activity. And, activity determines value and value builds your reputation or brand. Thus, an opportunity to grow and expand your personal development, business savvy, customer satisfaction or community relationships never occurs without activity. Moreover, in the midst of activity, it is necessary to understand intrinsic and extrinsic Needs, Experiences, Solutions and Wants/desires of the requisite activity. As a result, a circuitous paradigm shift arises where new methods of effectiveness and efficiency emerge.

4. Results: Preparation navigates your results. Although there is never enough time to do every task, there is sufficient time to do the most important. Thus, results are the influence and defining dynamics of personal, team, organizational or community development. If the desired results are not manifested, wisdom may dictate the necessity to reexamine the philosophy, attitude or activity. If the desire results manifest, wisdom may acknowledge greater visions for growing internally and externally. Moreover, the need to upgrade from a sharp ax to a powerful chainsaw may provide greater rewards.

Preparation allows you to set the sail. Commander Jonathan Wellington often quoted Jim Rohn expressing “it is not the blowing of the wind but the setting of the sail.” Thus, before chartering any waters/business ventures it is important to have the proper map. Similar to having a sharp Ax, your map is your tool for preparing, understanding and possibly maximizing performance. Remember, the discipline of sharpening your Ax or good time management/preparation will spread to all other disciplines.