An interesting case out of Massachusetts raised some questions about what an employee subject to a non-solicitation agreement can do. The employee announced her new position on her LinkedIn profile, and her former employer sued because among her followers were some of her now-former clients. The employer argued that this posting solicited her clients to come do business with her.
The court in this case was able to make a ruling based on other issues, and did not have to get into the LinkedIn issue. However, it put both employers and employees on notice – announcements on social media (be it LinkedIn, Facebook, or Twitter) can violate agreements and should be carefully considered. For employees, whenever you leave a job to start a new one, you should review any restrictive covenants that you signed (non-compete agreements, non-disclosure agreements, and non-solicitation agreements) to see what you are able to do. If there are limits on your ability to make public announcements, or if you have followers who are in a restricted group (either now-former co-workers or clients of the previous company), you may want to restrict the announcement to ensure that only people who can see your new job are able to. It will take you more time to set up, but it will be time spent saving yourself from a lawsuit.
New York’s Attorney General has started to get aggressive and go after businesses that put up fake reviews on sites such as Yelp. Calling it a consumer affairs matter, he has reached a settlement with a group of New York businesses that he was able to prove either put their own fake reviews online, or paid third party vendors for the false positive reviews. While he is the only government official taking a stand on this issue right now, he is not the only one fighting fake reviews. Yelp is suing a small law firm for allegedly posting fake reviews itself.
Fake reviews, known as “astroturfing,” are becoming more and more of a problem. The fake reviews hurt consumers who might choose a business based upon Yelp or another review site. However, beyond those victims, the reviews also hurt other businesses who might lose out on customers to the fake reviews. The reviews can also have the effect of hurting potential buyers of the business – looking at reviews of a potential purchase can tell you how popular the store/restaurant is with consumers and whether you can continue to market the brand, or if you would need to completely remarket the enterprise.
Even with these developments, “reputation management” companies will continue to solicit business, and for a small fee, will still flood review sites with positive reviews of your business. However, the New York AG’s office seems intent on continuing his policing efforts. It is also possible that this effort could spread to other states – the national response that this move gets will be telling. Beyond it being a potentially bad business practice, astroturfing may now have real legal consequences. As such, we recommend staying away from the practice.
The Guardian has an article up on how to spot, and avoid, false reviews.
A Canadian auto mechanic was fired after he tweeted in search of a delivery of marijuana. This raises an interesting question for both employers and employees – how far does that promise of free speech go?
In the workplace, probably not very far. Most employees are hired as “at-will employees” meaning that they can quit at any time, and for any or no reason, and the employer can fire them at any time, for any or no reason. The only exception here is that an employer cannot fire for an illegal reason (generally because of race, sex, nationality, sexual orientation etc.). In essence, as long as the employer isn’t discriminating, no employee is guaranteed a job tomorrow.
That means that an employer who learns of drug use by his employees through social media, even if that drug use is after hours, may choose to fire the employee. An employer who reads almost anything on social media that he disagrees with may use that as a reason to fire or demote any employee (with one caveat below).
The First Amendment – in particular, the clause about freedom of speech – does not apply because an employer, unless it is the government, is not covered by that rule. Employees have no right to speech without repercussions. As such, an errant tweet complaining about your boss, or insulting a customer, or one asking for a delivery of illegal drugs, can get you fired.
Be careful before you hit send – especially if your boss may be watching.
PS: The caveat – if the boss sees a post that gives information about you, such as your religion, or sexual orientation, then that information most likely cannot be used to fire you.