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Law

Discipline for Social-media Speech

By Kevin Maynard

 

In any given week, a news outlet or website will spotlight an employee being suspended or fired by an employer for a social-media post. These posts range from expressions of political sentiments and individual beliefs to commentary on the employee’s workplace or even the employer itself.

With the prevalence of social media in the daily lives of most individuals, employers are increasingly disciplining their employees for off-duty social-media posting, and employees are pushing back with legal actions.

In the resulting legal disputes, employees often mistakenly believe that the First Amendment protects all in-person and online speech. In reality, the First Amendment’s free-speech protection is limited to protection against government action. While public employers have a First Amendment obligation to respect some of their employees’ speech, private individuals and employers generally have no such constitutional obligation.

 

Public Employee Speech

Generally, a public employee’s speech is protected when it relates to a matter of public concern or importance. However, this is not an absolute, and a court must balance an employee’s right to free speech against an employer’s interest in an efficient, disruption-free workplace.

For example, a public-school teacher brought a lawsuit against her school district after being fired for making negative blog posts regarding supervisors, union representatives, and fellow teachers. In upholding the termination of employment, the Court of Appeals in the Ninth Circuit ultimately held that the blog posts harmed the Washington State public-school district’s legitimate interest in the efficient operation of its workplace because other teachers refused to work with the former teacher, and the termination was, therefore, appropriate.

Kevin Maynard

Kevin Maynard

“In the resulting legal disputes, employees often mistakenly believe that the First Amendment protects all in-person and online speech. In reality, the First Amendment’s free-speech protection is limited to protection against government action.”

Earlier this year, a public-school teacher in Fall River was fired for posting allegedly political and racist comments on social media. The teacher filed a lawsuit in Massachusetts federal court, claiming the city did not have “good cause” to terminate her employment and that her teachers’ union breached its duty of fair representation by not providing her any representation following the termination of her employment. An arbitrator to whom the matter was referred by agreement has reportedly found in the teacher’s favor, ordering reinstatement to her position and payment of all back wages. According to her attorney, the teacher intends to sue for retaliation and defamation.

 

Private Employee Speech

Unlike in the public sector, the First Amendment generally does not apply to the actions of private employers. However, private employers even in a non-union setting must be compliant with the National Labor Relations Act, which gives private employees the right to engage in “concerted activities” for the purposes of collective bargaining.

Examples of concerted activities include an employee talking with co-workers about working conditions, circulating a petition about improving working conditions, or joining with co-workers to talk directly to their employer. Regardless of whether the concerted activity occurs in person or over social media, an employer cannot interfere with such an activity taking place during or after work hours. Beyond this concerted-activity issue, the concepts of ‘at-will employment,’ ‘good cause’ for termination, or other common law or contractual issues may be relevant.

 

State-specific Protection for Lawful Off-duty Activity

Some states have laws that protect lawful off-duty activities of both public and private employees. In Colorado, an airport-operations supervisor was terminated for posts on her Facebook page regarding her support for preserving the ‘Rebels’ mascot of her high school, particularly one post that depicted the mascot with the Confederate flag.

A Colorado court vacated her termination of employment because it violated a Colorado statute making it unlawful to terminate an employee for engaging in a lawful activity outside of work. California, Louisiana, New York, and North Dakota have similar laws prohibiting employers from taking adverse employment actions based on lawful off-duty activities. Massachusetts has not enacted such a law.

 

Advice for Employers

Employers may choose to adopt social-media policies that address off-duty conduct. Anti-harassment and anti-discrimination policies should also address off-duty social-media activity. Any social-media policies should be enforced reliably to ensure the consistent treatment of employees.

In enforcing a social-media policy, employers must assess the effects of an employee’s social-media post on a workplace, including its impact on the ability of employees to work with one another. Social-media policies can be a helpful way for employers to set clear expectations regarding the standard of online conduct they expect of employees. The absence of such a policy can make the results of an employee’s challenge to an employer’s disciplinary action for inappropriate social-media posts much more unpredictable.

 

Kevin Maynard is an employment law and litigation partner at Bulkley Richardson; (413) 272-6200.

Opinion

Opinion

By John Garvey

 

Is Facebook really Big Tobacco? The answer is ‘no’ — and there is no reasonable comparison, despite the compelling testimony of the Facebook whistleblower.

A two-sentence trip down memory lane on the subject of the tobacco industry will refresh our collective memories about an industry that was not only supported by government subsidies, but protected by the government. The tobacco industry was, in fact, founded on the back of slavery. So, despite the attention that the ‘Facebook is Big Tobacco’ comparison attracts, it is wildly hyperbolic and does a disservice to any alleged misdeeds of the social-media giant.

Now that we got that out of the way, what is Facebook, then? Really popular. As you know, your mother is on Facebook commenting on your posts that you need to lose weight, and your kids are on Instagram hiding their profiles from you. I hesitate to introduce the fact that they are probably over on TikTok, actually, because that will give you a headache.

Breaking news: the fight between Facebook and the whistleblower/Congress was over before it started. Where’s the evidence, you say? The perceived and actual value of Facebook was debated the day before the whistleblower testified in Washington, when someone at headquarters apparently tripped over and disconnected the network cord to Facebook, Instagram, and Whats App (OK, that’s fake news, but they each did go down on Oct. 4). The world noticed, consumers’ demand was tested and passed, and the stock priced declined.

However, just as the whistleblower started to whistle, Facebook’s stock began to rebound.

Are the charges serious? Yes, but they are societal as well — meaning it’s not just the algorithm that pushes nefarious content in front of us and our children. It is, in fact, us. We have choices, and we can easily unlike, complain, or log off if we are confronted by information from any source that we find offensive. Conveniently, your digital marketers will support your complaints because they — meaning me — do not want you to log off and wish to continue to put information in front of you that you will feel is relevant, compelling, and useful. That is how the algorithm is supposed to work, and there are coders tweaking it every day to make it better.

Here’s where I understand your anger, though. Mark Zuckerberg is absolutely not the right person to be leading or speaking for Facebook at this time. While he may still be popular with the Facebook employees, outside the building, he is barely discernable. This is one guy who fails to emote or show empathy.

I know, this presentation is somewhat simplistic. But if you are on Facebook, Instagram, Twitter, TikTok, Pinterest, or, indeed, LinkedIn (is Snapchat dead yet?), I sincerely hope you are getting some value out of the platforms you frequent. Companies like Facebook need to be more transparent and will be forced to in the future — but more likely by you, the public, rather than Congress. So, keep showing up, but also keep weighing in.

After all, we do not want to wait centuries for improvements, like we had to for government’s regulation of Big Tobacco.

 

John Garvey is president of Garvey Communication Associates Inc.

Technology

What Works, What Doesn’t

By Lisa Apolinski

 

Here’s a surprising statistic from Kinsta: LinkedIn has over 575 million users, and nearly half of those are active every month (meaning they post, comment, or like on the platform). If that isn’t impressive enough, LinkedIn has its sights on further investments into Latin America. What makes LinkedIn even more powerful is that users update their bios regularly, so the connections you are potentially requesting are in the roles they have listed on their bios.

LinkedIn is a digital goldmine, especially now in the post-COVID digital paradigm. Users post on career engagement, network with others in their industry, and share expertise and advice. Unfortunately, less professional engagement can and does happen on LinkedIn. Understanding what works in the world of LinkedIn for networking, and what hinders, can help remove obstacles for engagement. Here are the five biggest blunders that can hurt credibility and, potentially, career advancement.

“What makes LinkedIn even more powerful is that users update their bios regularly, so the connections you are potentially requesting are in the roles they have listed on their bios.”

 

Blunder #1: Being vague about why a connection is requested. Some people believe more connections are better. However, some connection requests come with a note that does not share why the sender wants to network. If there is not a clear reasoning for the network connection, many of these requests appear to not help or enhance the receiver’s network. A connection request with a note can help put the connection request into context for the receiver.

Try Instead: Clearly state why a request has been sent and how the connection benefits both parties. To get a connection request accepted, think about why you are requesting the connection.

 

Blunder #2: Focusing on selling versus connecting. Many LinkedIn users complain about this practice, and it seems to have become more common. After a connection has been accepted, the next message is a long selling pitch. What is even more surprising is the immediate request for a call or virtual demo. This is a request of someone’s time without taking time to connect first. A focus on selling will not help with lead generation or brand reputation. This type of communication does little for the recipient.

Try Instead: Thank the person for the connection and share something that might benefit the new connection, such as a video or article. Sharing knowledge can go a long way.

 

Blunder #3: Not investing in a current professional photo. One of the first digital impressions from a LinkedIn profile is the user photo. Using a photo that is casual, old, or provocative is missing a great opportunity to showcase a level of professionalism. A photo is a visual precursor to a job interview or lecturer. Investment in a professional photo is also a wise one as it can be used in a variety of digital ways. By keeping the photo current, network members are also easy to identify in other settings (remember those trade shows?).

Try Instead: Even a quick shot with your mobile can work. Use direct lighting, and natural light is best (morning or late afternoon). Capture yourself from the shoulders up and minimize distractions in the background.

 

Blunder #4: Posting on politics. While most people have an opinion on the current political climate, sharing political viewpoints may not be the best decision. Posts and articles on LinkedIn should highlight expertise, provide knowledge and leadership within an industry, and share resources that can help networks. Political postings do not fall into these three categories. These may also be offputting or polarizing to current and future networks.

Try Instead: If you wish to share political viewpoints, consider posting to another social-media channel. Keep your LinkedIn channel focused on how you can provide professional leadership and insight.

 

Blunder #5: The social channel is LinkedIn, not Love Connection. With so many other dating apps and websites available to find a soul mate, LinkedIn is not the place to request a connection with the purpose of asking someone out. Not only is this request unprofessional, it can easily come across as creepy, especially to women. LinkedIn users are using the platform for career and networking and expect others to do the same.

Try Instead: Use LinkedIn for its primary purpose, namely professional networking, and save the search for love to those websites or apps specifically created for that reason.

 

Bottom Line

LinkedIn offers amazing potential to connect with experts, learn about new trends in your industry, and discover new career paths and positions as you explore options. LinkedIn can work well for digital connection and professional networking, especially if these blunders are avoided.

These small modifications can unlock new networking opportunities and strong professional engagement now as well as in the future, and help establish your credibility within both your industry and your organization. By avoiding these five missteps, you will be able to more easily harness the power of LinkedIn in your professional practice and take your career to new heights.

 

Lisa Apolinski is an international speaker, digital strategist, author, and founder of 3 Dog Write. Her latest book, Persuade With A Digital Content Story, is available on Amazon. She works with companies to develop and share their message using digital assets; www.3dogwrite.com

Features

The Consumer’s Dilemma

By John Garvey

“If you’re not paying for the product, then you are the product.”

That’s a quote from Daniel Hövermann in The Social Dilemma. If you have not seen the Netflix documentary, here are the important parts: a bunch of really rich people explain how creepy and addictive social media is, how most of them repeatedly and for different companies built it to be so, and how bad they feel about doing all that.

They explain, as their makeup artist prepares them for their actual interview, how social-media algorithms monitor our every move on the platforms. Nefariously, according to The Social Dilemma interviewees, this data is provided in anonymized form to advertisers so that they can get you to buy their products. In that way, you are the product — well, actually, your data is the product — that is offered by the platform (Facebook, Instagram, LinkedIn, Google) to the advertisers.

Actually, your attention is the product and has always been what marketers and platforms seek. Data can help get your attention, but it is a big mistake to think that data is going to drive conversion. Attention does.

Enter the feds and 46 attorneys general and one of the biggest anti-trust cases in U.S. history. They are suing Facebook essentially because, years ago, it bought Instagram (2012) and WhatsApp (2014) with FTC approval and then got really good at growing them. The charge is that they got so good at it, they made it bad for consumers and advertisers. Or, as the FTC put it, “suppressing, neutralizing, and deterring serious competitive threats.”

New York Attorney General Letitia James suggested on NPR’s Here & Now that the malfeasance goes even further. “Facebook’s monopoly means that users can’t pick up and go to another platform because they have no other meaningful alternatives.”

I’m guessing she is not on TikTok, although that platform has attracted its own turbulence from the Trump administration with the president’s determination that it is a national security risk.

It’s a safe bet that the courts will be dealing with all of this mess for some time.

John Garvey“Apple is acting to protect user privacy right now, and Facebook is freaking out. Apple’s upcoming version of iOS will require that apps ask user permission to track their activity across different apps or sites.”

So, where are the more near-term digital privacy protections and marketing changes coming from? This is a bit of a shocker because digital privacy protection is coming from two main sources these days: the European Union (EU) and Apple.

You know those annoying ‘accept cookies’ messages when you visit a new website? You can thank the EU and the General Data Protection Regulation obligations that went into full effect in May 2018. Because it is too hard to have one way of operating here and another there, generally EU regulations end up impacting if not protecting us as well.

There is regulation on the way. The EU’s Digital Service Act and Digital Markets Act are likely to create a new rulebook that will dramatically change the operations of online platforms as well as bolster the rights of consumers.

That’s all in the future. Apple is acting to protect user privacy right now, and Facebook is freaking out. Apple’s upcoming version of iOS will require that apps ask user permission to track their activity across different apps or sites. Even if the user gives that permission to track, iOS 14 — the software that runs the iPhone — will allow that user to turn it off at any time.

Think of it this way: Facebook will have to ask you, if you are an iPhone user, “hey, can I track a bunch of stuff you do on this phone and sell it to companies?” What would your answer be?

Apple’s iPhone controls more than 50% of the mobile-device market, so it’s no wonder why Facebook is freaking out. According to Inc., “Facebook is saying that iOS could result in a 50% drop in revenue for what is known as Audience Network. That’s Facebook’s advertising product that serves up ads within apps based on a user’s activity elsewhere. Audience Network is only a small part of the $70 billion in advertising revenue the company rakes in, but it isn’t hard to see why Facebook would be concerned.”

Recently, Facebook started running its own ads that highlight the harm users controlling access to their personal data will have on small business. The #SpeakUpForSmall campaign urges all users to take a stand for small businesses everywhere and add their voice in the comments section of their ad. At the time of this writing, there were three.

Facebook, whom Fast Company named “the worst brand of the year,” could use more likes.

 

John Garvey is founder of Garvey Communication Associates Inc., a digital marketing and PR agency with offices in Springfield and Los Angeles.

 

Women in Businesss

Women Supporting Women

Meghan Rothschild

Meghan Rothschild

When Meghan Rothschild launched Chikmedia as a two-woman operation five years ago, she was determined to build a successful marketing firm that focused heavily, if not exclusively, on women and brought a fierce attitude and a sense of fun into the work. Five years later, as the head of a small team with an ever-growing clientele, she says those philosophies haven’t changed — nor has the need for a company that reminds women of the power they wield when they lift each other up.

Marketing has come a long way in the 21st century, Meghan Rothschild says, in ways many companies struggle to understand.

Take social media.

“When we first started, social media wasn’t what it is today — it was something that businesses absolutely used, but it wasn’t this intricate skill set you have to educate yourself about in order to be up to date on the latest trends. That’s been one of the biggest advances,” said Rothschild, whose marketing firm, Chikmedia, recently celebrated its fifth anniversary.

“We’ve learned how to use social media from a business perspective in a really successful way,” she went on. “Our social-media management is much more comprehensive, and includes graphic design and creating custom content, and using the live features and story features on all the platforms. That’s evolved quite a bit. But other things about this business are the same, like writing press releases and helping people have grand openings at their businesses.”

“You have all these places that have ample budgets, or have a staff person dedicated to marketing. We like to work with the companies that don’t have that. Marketing is such an important part of business ownership that people forget about.”

Chikmedia is unique in other ways, though. For one, Rothschild — who gives herself the title “chief badass” — says she started the business to put an emphasis on female-run organizations and women business owners with an “edgy, fierce, and authentic” approach.

At its inception, Chikmedia focused mostly on social media, graphic design, and public relations. However, the firm has expanded its services outward, with branded events (more on that later) and a series of educational workshops that aid businesses with social media, personal branding, PR 101, and crisis management, to name a few topics.

While not all clients are female-run companies, the average client, Rothschild explained, is a woman who owns a small to medium-sized business who isn’t sitting on a six-figure marketing budget and, therefore, needs to be creative with her efforts.

“We sort of thrive in that space, finding unique and creative ways to engage audiences that aren’t going to cost you $100,000,” she said. “You have all these places that have ample budgets, or have a staff person dedicated to marketing. We like to work with the companies that don’t have that. Marketing is such an important part of business ownership that people forget about.”

Among its newer clients are the region’s new Futures Collegiate Baseball League team, the Westfield Starfires. Chikmedia also worked with Square One, a Springfield nonprofit that provides a range of early-education and support services, in launching a new service line that expands childcare to all hours of the day. The company has also partnered with Dunkin’ Donuts in sponsoring several events.

In short, it’s a varied clientele, which means a lot of education going both ways.

It all feeds into a “fierce” attitude she further describes as “bold, empowering, having confidence, and positioning clients in a way that they are the experts on their subject matter.”

In fact, Rothschild said, empowering women is at the core of everything she does, having been harassed and encountered inappropriate treatment many times in the corporate world — and not only by men.

Educational workshops

Educational workshops have become a staple of Chikmedia’s services — and a way to put more autonomy in clients’ hands.

“It’s one thing to walk into an environment and not be supported by your male peers, but to encounter that from your female peers is really something. It’s frustrating,” she said. “I said, ‘this is going to stop with me. I’m going to start a company whose mission and sole purpose is women lifting each other up instead of tearing each other down.’

“As a culture,” she went on, “it’s really easy for us to give each other a hard time and drag each other down and be super competitive, but we want to be the complete opposite of that — women supporting women.”

Choosing a Path

Rothschild had been in marketing for eight years — with stints as marketing and promotions manager at Six Flags, development and marketing manager at the Food Bank of Western Massachusetts, and director of marketing and communications at Wilbraham and Monson Academy — when she teamed up in 2014 with Emily Gaylord, who brought a strong design skillset to the partnership they called Chikmedia.

With about two dozen clients coming aboard in the first few months, including Bueno y Sano, UMass Dining, Papa John’s, ArchitectureEL, Energia Fitness, SkinCatering, and Lioness magazine, they were, frankly, overwhelmed with the early response and realized they had something that was more than a “side hustle,” as Rothschild put it.

Gaylord eventually left the company to pour more of her time and passion into the Center for EcoTechnology, where she works as Communications and Engagement director. Meanwhile, Rothschild was balancing ownership of Chikmedia with a full-time gig at IMPACT Melanoma. A survivor of the disease who had built a national platform for skin-safety advocacy, she was working for IMPACT as Marketing and Public Relations manager when he realized she had to make a choice.

“I spent about four years at IMPACT, and last year, the success of Chikmedia was getting to the point where it wasn’t sustainable — I couldn’t do both. And I felt like Chikmedia was the right path.” Today, she still serves as a spokesperson for IMPACT, which is among Chikmedia’s clients.

As the company has grown its client base, Rothschild said, so has its emphasis on education and training, both one on one with clients and in the community.

“We’ll do a training for anyone. We did one-hour training for a client on Constant Contact; she was new to the software, so she brought me in, and I walked her through,” she recalled. “If you have someone in your office that’s supposed to be managing Instagram and they don’t know how to use it, instead of giving them a month or two months to learn all the intricacies of it, bring us in for an hour, and we’ll educate them on what to do. That way, we’re putting the power back into corporate hands. A lot of people would love for us to manage their social media, but it’s not the most cost-efficient thing as opposed to us coming in and training your staff how to do it.”

“I’m going to start a company whose mission and sole purpose is women lifting each other up instead of tearing each other down.”

She also teaches personal branding and social media at Springfield College, calling education a “side passion” alongside marketing and helping firms grow. Often, she takes what she’s done in those classes and packages the material into condensed workshops for clients and other audiences, like a three-part series she recently conducted on navigating one’s personal brand — what it is and why it’s important.

“It’s super relevant,” she said. “Think about social media. Even though universities are starting to adapt, starting to insert it into the curriculum, it’s definitely not a standard part of the curriculum. So I’m helping to fill that void until everyone catches up.”

While teaching, though, she’s often learning — specifically, about each client and industry she takes on.

“Our specialty is learning the industry, and we’re working with everything from financial investment firms to UMass Dining, Dunkin’ Donuts, local spas like SkinCatering and Beauty Batlles, nonprofit organizations, event-planning companies … we’re sort of a mix. I always say to clients, if we don’t know something about this subject matter, we’re going to learn it.”

She tries to be honest with each potential client, too. “I’ve had people come to me and say, ‘this is what I need,’ and I’ve said, ‘I don’t think we’re the right fit for you; I think you should go to XYZ.’ Or, ‘I don’t think you’re ready for marketing yet; I think you should see a business advisor first.’ We’re not going to put a square peg in a round hole. We want the right fit.”

Fun with a Purpose

In all those efforts, she’s also passionate about keeping the emphasis on making marketing and branding fun. When BusinessWest sat down with Rothschild and Gaylord five years ago, after the launch of Chikmedia, they said if they’re another stressor in a client’s day, they’re not doing their job right. Today, as the sole business owner, Rothschild has not abandoned that philosophy.

“I can be hard to stay true to that because, as an entrepreneur, you’re trying to stay afloat and get all the work done. But I made a promise to myself when I made this a full-time job I was going to continue that path and have fun in everything I do. You spend the majority of your waking hours at work; you’d better enjoy what you do and be passionate about it.”

Ashley Kohl, owner of Ohana School of Performing Arts

Ashley Kohl, owner of Ohana School of Performing Arts, was one of many women business owners show-cased at Chiks’ Night Out.

Part of that sense of fun comes out during the firm’s branded events, such as Chiks’ Night Out event, which took place in Springfield in March to promote the spring line of Addy Elizabeth, a chic clothing boutique.

“All the focus is on women entrepreneurs, so all the models and sponsors are women entrepreneurs. We’re not calling them models, but women business owners. When they walk on runway, we describe their outfit — and their business. So women are learning what women on the runway have to offer them in terms of services.”

Then there’s a bus tour called Chiks’ Day Out, a sort of shopping trip where every stop is a female business.

“That’s how our events are positioned,” Rothschild said. “We want leave them tingling, saying, ‘oh my God, there’s such a need for this — for women to connect in a fun way.’ It creates a sense of community.”

Chikmedia promotes connections through its strong social-media presence as well, on platforms like Facebook and Instagram, as well as its own blog — not to mention its line of branded merchandise, like T-shirts emblazoned with phrases like ‘Boss Chik.’

“I see women wearing our T-shirts, hats, and sunglasses, and I’m not sure if there’s another local firm that has that kind of presence,” she told BusinessWest. “I really am proud of that, how we’ve been able to leverage our own brand to help our clients.”

Besides its core team of four in Western Mass., Rothschild has an intern in Providence, a part-time accountant, and contractors spread out over its service areas, which extend beyond this region into Boston, Cape Cod, Rhode Island, and Charlotte, N.C. In today’s high-tech world, she said, there’s plenty a company can do remotely for clients, although she needs to be in front of them for certain tasks, like running events and producing video content for social media.

And there’s plenty of room for the firm to grow, she noted, adding that its success in its first five years has been a gratifying challenge — in every sense of both words.

“I’d be lying if I didn’t I say I enjoy being my own boss,” she said. “Of course, as an entrepreneur, you say, ‘I’m going to manage my own schedule and take vacations,’ and the reality is you never take vacations. Even when you go on vacation, you’re on the phone. When you’re a business owner, you’re the business. It’s my burden to bear; its not someone else’s. It’s not someone telling me to do something; it’s me being accountable to myself.”

Still, she added, “I love marketing and PR, I love social media, I love writing. Having control of my own company makes me happy, and my team makes me happy — they’re smart, awesome people. I genuinely love what I do.”

Joseph Bednar can be reached at [email protected]

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