The Latest and Greatest in Social Media? Instagram!

 

By Alexandra Kutcher

Picture this

How many times a day do you scroll through endless news feeds? Probably more than you have time for, thus, the rapid-fire scanning scroll.

Where’s your voice – your company’s voice – in all of this? You know how you handle your social media intake. What about everyone else? You may rightly assume that most handle their news feeds the same way that you do: rapidly, quickly, hurriedly, briefly …

So, how do you get people to pay attention?

The short answer? Instagram.

Why? People use Instagram to look at photos. It’s a medium that draws people in more so than, say, Facebook because we are a visual breed. We want to look at things.

Attention

No one has it anymore.  Not a very long span of it, at least. Who has time to read a three-paragraph Facebook status on your all-star husband re-staining the deck and how your 3-year-old helped, all the while learning Latin?

Be seen not heard

Post a photo and blurb, and you are much more likely to engage and capture attention.

Scroll, scroll, scroll … something about the deli down the street … scroll, scroll, scroll … bad hairdresser something something … scroll, scroll, scroll … oh, what? I didn’t know they were remodeling. Gorgeous counter top! Is that concrete?

Like and comment: “Looks amazing, Jeannine! What’s the counter top made of? I’ve never seen anything like it!”

Jeannine posted a picture on Instagram and shared it on all her social media. She stood out. She posted an eye-catching photo in a unique format – square shaped with a dream-like edit.

Using photos to connect and grow your business allows the public to relate on an individual level.

On a personal note

If you don’t use Instagram, start now. Share those photos on all your social media outlets.

Don’t just talk about what you’re doing – show it. Customers, clients, and fans will see much more than just your brand. Post photos from your office. Post around holidays. Post with clients. Anything!

People will see themselves on your page, get excited, and share on their social media. This grows your following! Others will see friends, people, and places they recognize, and connect on a personal level.

And, they’ll want to be part of it. All because of Instagram.

Building a Beneficial Relationship with the Media

By AMY MARIE OROZCO

Quick! Name the business page reporter for your local daily newspaper. The one whose beat includes your company.

A gold star for you if you knew the reporter’s name. If not, not to worry, you can find it easily enough by checking the morning paper or Google-ing it (“[name of newspaper] + business reporter”). Then, you’ll have completed the first step to building a relationship with the media—knowing an individual’s name. This first step is critical in helping you secure publicity.

Contrary to what many might think, journalists are human beings. They only appear monster-like sometimes because they are constantly racing against a clock, and that race leaves a razor thin margin for niceties such as common courtesy and politeness.

Learning to navigate reporters’ tight schedules and pitch stories quickly will help you get on their good side.

The next step to forging a relationship with the media is not to take any of the aforementioned lack of civility personally. While it’s hard not to be offended and arch your back after being hung up on, just remember, it’s not you. It’s the media. And, they don’t see their behavior as rude. It’s how they get their job done. They act that way toward everybody.

Now, to build a long lasting and beneficial relationship with the media, try the following. (Remember: don’t take anything personally.)

Introduce yourself. Pick up the phone and call. Most likely you’ll get voicemail so have a 15-second message ready. Follow up with an email. Let the reporter know about your expertise in your field. Offer a few story ideas with unusual angles. Most likely you won’t get a response, and that’s okay.

Mind the time. Journalists are always on deadline. Use a direct approach. Stick to a point, and stick to what you know. Return calls and emails quickly. Use first and last names and, when possible, answer Who, What, Where, When, Why without being asked. A deadline is hard and fast. It’s not a target.

Be reliable. Don’t stretch the truth. Don’t spin. Ever. If you don’t know an answer to something, say so. (And, if asked to speculate on rumor or innuendo, do yourself a favor and don’t.)

Help them. You’d be surprised to what extent journalists use the Internet to do their job. Is your Website media friendly? Is there a Press tab? Are key personnel names and contact info readily available? High resolution photos of products and people easily downloadable? A clear and concise write-up on your company available?

Stay in touch. Keep them in the loop. Email is the preferred way; an occasional phone call is okay. Expand your social media. Link one of the reporter’s story you find interesting on your company’s blog. Re-Tweet. Follow the reporter on Facebook. Remember, there’s a thin line between persistent and annoying. Be careful not to cross it.

Nothing too earth shattering, is it? Maybe not common sense, but easy enough. Yet, so many business people are in the dark. Follow the above guidelines, and soon you’ll have a relationship with a local reporter and your name will be in lights.

For more information on building relationships with the media, read Dorie Clark’s piece on the Huffington Post or Abbi Whitaker’s post on Ragan’s PR Daily.

So You’re in the News, Now What?

By AMY MARIE OROZCO

Congratulations! Your company was featured—favorably—on the front page of a large metropolitan daily newspaper. Way to go! You can’t buy publicity like that.

And the story spun into a 30-second bit on the nightly news? Priceless!

Go and bask in the glory … I’ll give you 5 minutes.

So, now what?

First, I’m going to assume you have covered the operations side of things. Ready for the resulting onslaught of orders. Materials in place. Distribution channels clear and open. Staffing ramped up.

Now, I’m going to tell you how to parlay your 15 minutes of fame into an eternity of publicity. Don’t let this avalanche of good fortune go to waste. Here’s what you must do:

• Thank the journalists responsible for putting your company’s name in lights. No need for a gift, but a phone call and an email or handwritten note will do the trick.
• Buy reprints of the newspaper story. Get it in digital form, too. Then create professionally produced reprints. Post the reprint on your Web site, Facebook page, and the rest of your social media.
• Link to the 30-second news bit to your Web site and all social media.
• Remember to use SEO and back links to further drive traffic to your company.
• Share your news with ALL your clients and prospective clients. Copies of the reprint go via snail mail. An email blast or your e-newsletter goes into everyone’s inbox.
• Think re-purposing and reusing. Did the newspaper article refer to you as an expert in your field? Add that to your list of credentials. Did the newscast recommend your business? Better put that on your Web site.
• Find out how the reporter decided to do the story. From a press releases you sent? A customer? How do you find this out? You ask them directly! Use the same tactic in the future, but don’t rely on it solely.
• Pitch other media with your news. Like a trade magazine or a radio talk show—now that you’re an expert.
• Keep your press kit updated. Always.
• Stick to your publicity calendar. Continue sending out press releases. Be regular with blog posts. Is your Web site fresh? Don’t rest on your laurels.

Careful, speaking “off the record” can stay on your permanent record

By AMY MARIE OROZCO

Journalists question President Richard M. Nixon during a Watergate press conference—Oct. 26, 1973. White House Photo Office Collection.

Anything said to a journalist may be used in a story, unless a previous agreement has been made—emphasis on previous. Remember that.

Speaking “off the record” needs to be a premeditated act with a very specific agreement reached between the subject and the journalist. For many, “off the record” means the source of the information won’t be named. However, to the Associated Press and journalism schools “off the record” means information given to a reporter is for his or her knowledge only and cannot be used in a public way. Oftentimes, this off-the-record information points the reporter to a new source, one who perhaps—reporters hope—has more leeway to speak “on the record.”

What many people think of as “off the record” is technically called “on background,” which means the information given to a journalist can be used but not attributed by name. The journalist will attribute the information to an agreed upon title such as “city hall insider” or an “executive level source within the company.”

When is it appropriate to speak off the record? When you have very important information of public significance and need a promise of confidentiality, according to the Associated Press Stylebook. Only speak after you have reached a previous agreement with the reporter. The AP Stylebook also advises that “a reporter who reveals the name or identity of someone who was promised confidentiality can be held liable for breach of this agreement.”

For some critics in today’s 24/7 news cycle, off the record has become synonymous with license to attack without accountability. For journalists, off the record and on background remain cornerstones of upholding the First Amendment.

To play it safe with the media, follow Media Manoeuvres Golden Rule:

“Always assume, if you are near a journalist, camera or microphone, that you are on the record and if you don’t want to see it, hear it or read it, then don’t say it.”

GIMME A GRABBER: 8 Tips for Writing Effective Headlines

By AMY MARIE OROZCO

It’s the headline that makes the sale in the publicity marketplace. The headline’s the one that grabs and holds the editor’s roving eye. No matter how brilliant your story may be, it won’t be read without the siren song of a headline.

Good to know, right? Better to know, though, is how to write a great headline.

1. Keep it simple and direct. The goal of a headline is to hook the reader. Even with all the changes the digital era has brought, the typical headline remains only five to eight words. Examples: “Unresponsive Private Plane Crashes Off Jamaica” from the HuffingtonPost.com, and “Assassin Kills Kennedy: Lyndon Johnson Sworn In” from the Chicago Tribune.
2. Express a complete thought. A headline has a verb, a subject, and sometimes an object. The stronger the verb, the better the headline will be. Examples: “Lava Threatens to Cut Off Town” from CNN.com and “Titanic Sinks Four Hours After Hitting Iceberg” from The New York Times.
3. Be specific. Readers make decisions in milliseconds. Don’t lose them by making generalities. Capturing their attention is in the details.
4. Save the one- and two-word headlines for earthshaking events. Example: “Diana Dead” from The Daily News.
5. Avoid the status quo. “No Word on New Tax Initiative” tells the reader not to bother reading. “Traffic Remains Top Commuter Complaint” is sure to induce a big yawn. 
6. Watch the hyperbole and exaggeration. Forego using miracle, amazing, breakthrough, and other such words indicating the copy to follow is full of hot air. 
7. Sidestep the “Upworthy Style.” Don’t bother with the trendy teasers hogging papering cyberspace, such as “This little boy was wheelchair-bound since birth. What happened at his aunt’s wedding will blow your mind.” Or, “This dog nursed an orphaned raccoon. You won’t believe the end result.”
8. Apply the “doo-dah rule.” To make sure the headline sings (sounds good to the ear), say “doo-dah” after it. If there is a rhythm, you are good to go. Examples: “Nixon Resigns doo-dah” and “Dewey Defeats Truman doo-dah doo-dah.”

Residential Solar Panel Use in California and Impacts Upon Neighbors

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Published in Citations, the magazine of the Ventura County Bar Association.

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By MARK F. MILLER

We have all seen or heard the ads beckoning homeowners in Southern California to turn their roofs into power generation plants through the installation of purchased or leased solar panels and, thereby, avoid all or a large portion of their monthly electric bills. Some ads promise that (if leased) the panels can even be installed at no cost to the homeowner. What is not discussed is that many legal issues – regulatory, contractual and impacts upon neighbors – may arise in connection with installing photovoltaic (PV) panels. Failure to heed these issues can result in potential litigation and liability, loss of investment, loss of insurance coverage or enforcement by governmental authorities or homeowner associations.

PV panels convert sunlight into electricity, which is then converted into AC current suitable for household use. Panels generally require little-to-no maintenance, usually have no moving parts, and do not produce carbon emissions. Panels can be purchased outright but are usually the subject of complicated leasing arrangements with the installers, in which a one-time lease payment is made in exchange for the prospect of future free or reduced electricity costs. The market value of the property may be affected, as some buyers may be attracted to a home with a solar panel, while others may consider the risks and drawbacks off-putting. Uncertainty exists as to ownership of the panels in the event of foreclosure of the property.

California’s solar access laws appear in the Civil, Government, Health and Safety and Public Resources Codes. Civil Code section 801.5 provides that neighbors may sign solar easements to ensure proper sunlight is available for PV panels. Government Code section 65850.5 permits subdivisions to include solar easements applicable to all subdivision plots. Public Resources Code section 25980 contains the Solar Shade Control Act (SSCA), under which trees and other natural shading planted after installation of a solar collector may not cast a shadow that covers more than ten percent of a neighboring property’s solar collector absorption area between the hours of 10 a.m. and 2 p.m.

Nuisance (Civ. Code, § 3479) is the “unreasonable interference with the use and enjoyment of the property of another.” One potential nuisance impact from PV panels is extreme glare. In certain alignments, mirror-surface solar panels may direct and concentrate reflected sunlight (and intense heat and glare) toward neighboring properties. In one well-publicized example, the mirrored convex surface of a London skyscraper concentrated sunlight into a “death ray” that melted the interior of a nearby parked Jaguar. A dearth of case law exists in California as to allowable levels of heat, light, glare and inconvenience that may be directed by PV panels to a neighbor’s property. By analogy, provisions of the Los Angeles Municipal Code restricting exterior lighting may be useful. LAMC § 93.0117, provides that “no exterior light source may cause more than two footcandles (21.5 lx) of lighting intensity or generate direct glare onto exterior glazed windows or glass doors; elevated habitable porch, deck, or balcony; or any ground surface intended for uses such as recreation, barbecue or lawn areas or any other property containing a residential unit or units.” Until the heat and glare issue is clarified, it is prudent for PV owners in residential areas to minimize impacts on neighbors through use of solar panels constructed with non-reflective tinted glass.

Another potential adverse impact on neighboring properties from PV panels is loss of view. There is no general protection for light, air or view in California; however, exceptions exist for (a) recorded height restriction covenants; (b) municipal view ordinances; (c) CCRs; and (d) “spite walls” (or “living walls,” per cases holding that a massed line of trees planted for spiteful purpose can constitute a “living spite wall”). Height limitations for PV panels are contained in LAMC §12.21.1B(3) which specifies the allowable height deviation for certain roof top features and states: “In all zones, Solar Structures may exceed the roof surface by three feet even if the roof surface is at or above the allowable building height limit.”

Prohibitions and restrictions against use of solar panels may be contained in CCRs, architectural guidelines or rules and regulations of homeowner associations or CIDs. Civil Code section 714, subdivision (a), part of the Solar Rights Act, renders “void and unenforceable” any covenant, restriction, or condition “that effectively prohibits or restricts the installation or use of a solar energy system.” Subdivision (b) makes this prohibition inapplicable to provisions that impose only “reasonable” restrictions on solar PV, i.e., those which do not “significantly” increase the cost of the system or decrease its efficiency or performance. Subdivision (d) defines a cost increase of more than $2,000 or efficiency decrease of more than 20 percent as significant.

The Public Utilities Commission has made retrofit installation rebates available to energy customers of the state’s three investor-owned utilities – Pacific Gas and Electric Company, Southern California Edison and San Diego Gas and Electric – through the California Solar Initiative. On the federal level, a personal tax credit is available for certain qualified residential and commercial solar installations; the credit is 30 percent of the cost of a system “placed in service” from Jan. 1, 2006 through Dec. 31, 2016.

A description of energy cost advantages to consumers from PV and guidelines for safe PV installation are found on the state’s “Go Solar California” website. “Net energy metering,” is a billing arrangement that provides credit to customers with solar PV systems for the retail value of the electricity their system generates. The customer’s electric meter tracks the amount of electricity consumed by the customer and the amount of excess electricity generated by the system and sent back into the electric utility grid. Over a 12-month period, the customer pays only for the net amount of electricity used from the utility (plus certain distribution costs).  Customers who generate a net surplus of energy at the end of a twelve-month period can receive payment for the excess energy under special utility tariffs.

In PV panel placement, careful consideration should be given to regulatory zone, permit and code requirements, as well as impacts upon neighbors. Failure to consider these matters may cause losses or potential liability that far exceeds any energy cost savings realized from the PV installation.

Mark Miller is a partner at Manfredi, Levine, Eccles, Miller & Lanson, APC in Thousand Oaks. He has considerable experience in real estate, business and insurance litigation, real estate development, construction and management and insurance coverage matters. To contact Mr. Miller, call 805-379-1919 or email mmiller@manfredilevine.com.

Names Worth Millions

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Published in Citations, the magazine of the Ventura County Bar Association.

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Michael Jackson

Marilyn Monroe

Jackie Robinson

By DOUGLAS BORDNER

What do Marilyn Monroe, Michael Jackson and Jackie Robinson have in common? Names worth millions.

Over the past several years, there has been much news coverage of the income generated by the estates of deceased celebrities, including deceased entertainers and sports figures. Forbes magazine reported on October 23, 2013 that Michael Jackson’s estate earned an estimated $160 million dollars between June 2012 and June 2013. Elizabeth Taylor’s estate earned an estimated $210 million in 2011 and $25 million dollars in 2012. Elvis Presley’s estate earned an estimated $55 million dollars in 2013, and Bob Marley’s estate earned an estimated $18 million dollars in 2013. This has not always been the case. Only recently, with changes in the law, have families of deceased celebrities been able to both profit from their names and likenesses, and adequately protect their names and likenesses.

In 1971, the State of California enacted Civil Code section 3344, which allowed a living individual to recover damages for the unauthorized use of his or her name, photograph or likeness for commercial purposes. However, this law did not extent to deceased individuals. As the common law right was derived by the laws on privacy, it was not transferable upon death and the rights of publicity expired when the individual died. With the invention of television and film, companies began to use the name and likeness of deceased individuals to market products using clips of entertainers in television commercials. The most famous one being a clip of Fred Astaire from “Singing in the Rain” in a commercial for vacuum cleaners.

Families of several deceased celebrities attempted to prevent their famous deceased relatives’ names, likenesses and voices from being used without their permission and without compensation, but California courts ruled that deceased celebrities had no rights; the rights died with them. As a result, several families of deceased entertainers, including the family of the late Fred Astaire, lobbied the California Legislature to change the law. In 1984, California passed California Civil Code section 3344.1, commonly referred to as the “Astaire Celebrity Image Protection Act.” Under the law, a right of publicity was created for deceased celebrities for 70 years from the date of death. Subdivision (a)(1) subjects “any person who uses a deceased personality’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from” specified persons, to any damages sustained and to liability for “the greater of seven hundred fifty dollars ($750) or the actual damages suffered by the injured party or parties, as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages…”.

Further, section 3344.1, subdivision (b) provides that a deceased celebrity’s name, image and likeness are freely transferable by contract, will, trust or other testamentary instrument.   

Before 2007, courts held that section 3344.1 only applied to celebrities who died after 1985. (Milton H. Green Ar-chives, Inc. v. CMG Worldwide, Inc. (C.D. Cal. 2008) 568 F.Supp.2d 1152.)

In part in response to Milton H. Green Archives, the Legislature changed the law to apply to deceased celebrities who died either before 1985 or after 1985. This allowed the estates of deceased celebrities such as Marilyn Monroe, Spencer Tracy and others to protect and profit from their names and likenesses, and to prevent unauthorized use of the names and likenesses for commercial purposes. Allowing families of deceased celebrities to market their loved ones’ names and likenesses in some cases has resulted in earning millions of dollars,  sometimes even more than the celebrity earned while alive.

For a family to enforce their rights under this law, to the owner of the name and likeness of a deceased celebrity must file with the California Secretary of State’s Office a form titled Registration of Claim of Successor-In-Interest, setting forth the ownership percentage owned in the name and likeness. If this form is not filed, a family cannot recover damages for the unauthorized use of the name and likeness of a deceased celebrity.

What does this mean for attorneys in California? For estate planning attorneys, if you represent celebrities or the families of deceased celebrities, you should familiarize yourself with this area of law. Estate planning documents that you prepare for a client should address the name, likeness and image of a celebrity as a transferable property right, just as any other property owned by an individual. In addition, any attorney representing a family of a deceased celebrity should also make sure that the Claim of Successor-In-Interest form is filed with the Secretary of State.

Not all states have similar laws to protect the name and likeness of a deceased celebrity. If the deceased celebrity did not reside in California at the time of death, California law may not protect the rights of the deceased celebrity.

With new technology and the ability to make deceased celebrities appear in commercials, films, and at concerts, the protection of deceased celebrities’ rights in their names and likenesses will continue to be a growing area in the transactional sector, as well as in litigation.

Douglas Bordner is a partner at Myers, Widders, Gibson, Jones & Feingold, LLP in Ventura. He represents developers, architectural firms, engineering firms and real estate investors. He also handles business acquisitions, mergers, and international software licensing and distribution agreements. Call 805-644-7188 or email dbordner@mwgjlaw.com.

#TBT ANTI-GRAFFITI PAINTING THE HOLLYWOOD SIGN

Over the years, the iconic Hollywood Sign has been sprayed with graffiti from artists ranging from gang members to lovers to adventurers — all wanting to leave their mark.

As public relations’ rep for Textured Coatings of America (TCA), a Los Angeles-based company that manufactures paint and, among other specialty products, an anti-graffiti chemical coating, it’s not hard to figure out how a graffiti-covered sign and a company with an anti-graffiti coating fit together …

Working with the Hollywood Chamber of Commerce, we arranged for Textured Coatings of America to donate the supplies and labor to re-paint the Hollywood Sign’s 50-foot-high letters and coat them with Tex-Cote Graffiti-Guard®.

The project cost Tex-Cote more than $25,000 and took about a week to complete.

As the final day approached, we held a press conference in conjunction with the Chamber of Commerce and invited every Los Angeles newspaper, television and radio station to attend.

As the press conference was underway, we could see the television helicopters flying over the Hollywood Sign as the anti-graffiti coating was being applied.

The Mayor of Los Angeles created a committee titled “The Mayor’s Committee for Graffiti Removal” and TCA’s CEO, Stuart Haines, was named Chairman.

What made this such a smashing success? Why did editors and reporters jump all over this story? Two main reasons:

• The Hollywood Sign is an icon, one everyone recognizes and cares about.
• The story was about the city and the sign, not about Tex-Cote.

Editors and reporters are not in the business of advertising companies. They care more about how your business engages and benefits the community than how your business makes you money. Yes, they are interested in new products (Tex-Cote’s anti-graffiti coating), but they are more interested in how those products benefit the community and the public.

For Textured Coatings of America, demonstrating how their product works by donating their time and money, earned them national publicity for more than a year, just from that one event.

Employers Take Note: The US Supreme Court has Entered the Digital Age

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Published in Citations on Aug. 1, 2014. 

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By JILL FRIEDMAN

Social media blew up over the US Supreme Court’s June 30 decision in Hobby Lobby. The uproar nearly squelched any chatter about the Court’s historic, nearly unanimous opinion just five days earlier in Riley v. California and United States v. Wurie, which were combined into one decision (collectively “Riley”). Both cases in Riley involve whether and how to apply the "search incident to arrest" doctrine to cell phones that police find in the possession of an arrestee. The Supreme Court held that police may not examine the digital contents of an arrestee’s cell phone as part of a search incident to arrest. 

The Riley case was a huge Fourth Amendment decision, but more importantly for civil practitioners, the US Supreme Court recognized for the first time the huge potential for invasion of privacy related to searches of digital data. The Court specifically said that a typical cell phone contains extensive data that allows a viewer to learn information about every feature of the cell phone owner’s life. Chief Justice Roberts, writing for the majority (all justices joined, with Justice Alito concurring in part and concurring in the judgment), noted, “Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form – unless the phone is.” This was the first US Supreme Court ruling on privacy in the digital age, and its impact is expected to extend well beyond personal cell phone usage.

Law constantly struggles to keep pace with technology. As employers attempt to keep up with technology, the boundaries between business interests and employees’ privacy rights often become blurred. For example, while an employer may be tempted to review a job candidate’s social media posts, potential liability looms when snooping social media sites leads to discrimination. What happens when an employer hires someone else after discovering through social media that a potential employee is disabled, a member of a religious or political minority group, or is in a same-sex marriage? It may be difficult to prove that the information was not used in making the hiring decision if evidence shows that the search was conducted. Even if the employer ultimately prevails, it is an expensive exercise in employer rights versus First Amendment freedoms.

The lines become less defined in the workplace. What happens when employees use company-owned cell phones or work from home using company-owned computers? What happens when an employee uses company-owned equipment to post on social media, such as Facebook, Twitter, and Instagram? The Riley decision gives us a glimpse of where the law might be heading in this regard, but it is still largely unchartered territory. 

Certainly an employer can access an employee’s social media activity that is available to the general public. An employer may also monitor an employee’s social media activity where the activity takes place using employer-issued equipment or on an employer owned network. But what does an employer do with information gained through social media? Employee use of social media can raise a whole host of issues, including disclosure of the employer’s confidential, privileged and proprietary information — all of which an employer would be legitimately have an interested.

The federal Stored Communications Act (the “SCA”) protects stored electronic communications that are configured to be private. Courts have found that social media activity, such as non-public Facebook posts, is protected under the SCA. Therefore, an employer potentially violates the SCA where it accesses an employee’s non-public Facebook posts without the employee’s authorization. 

Some statutes help define the boundaries, but are by no means definitive. California Labor Code section 980, enacted in 2012, prohibits an employer from requesting a job applicant or employee for access to his or her social media, except in limited circumstances. Section (b) of the statute provides that an employer may not “require or request” a job applicant or employee to do any of the following: (1) Disclose a username or password for the purpose of accessing personal social media; (2) Access personal social media in the presence of the employer; or (3) Divulge any personal social media. However, an employer may request that the employee “divulge any personal social media” if it is relevant to a formal investigation. The statute does not preclude an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

Where an employer elects to monitor its employees’ social media activity, the employer must proceed carefully if and when it uses the information learned to discipline or terminate an employee. Terminating or disciplining an employee based on information gained through monitoring the employee’s social media activity potentially violates existing law. For example, the National Labor Relations Act (“NLRA”) protects the right of employees to engage in concerted activities. Generally, this requires two or more employees acting together to improve wages or working conditions, but the action of a single employee may be considered concerted if he or she involves co-workers before acting, or acts on behalf of others. An employer who is considering terminating or disciplining the employee after learning that an employee is making derogatory posts about the employer on his or her Facebook page that are shared with other co-workers, should consider whether the employee’s posts would be considered concerted activity protected by the NLRA.

Any employer who intends to monitor its employees’ social media activity on employer-issued equipment or employer-owned networks should disseminate written policies that inform employees that they have no expectation of privacy for any social media activity sent or received on employer-owned networks or using employer-issued equipment and that all such communications and activity may be monitored. In a litigation context, such policies help demonstrate that employees do not have a reasonable expectation of privacy in any activity they conduct on an employer’s network or using an employer’s equipment.

Even with such policies in place, employers do not have free reign. An employer should only use legal means to monitor an employee’s social media activity, regardless of the equipment or network on which this activity takes place. For example, an employer can access an employee’s social media accounts that are generally available to the public. However, an employer should never attempt to gain access to an employee’s private social media account through the use of deceptive means, like using a false identity or by obtaining the employee’s private password from a friend or coworker.

“Privacy comes at a cost,” wrote Roberts in Riley. Employers who monitor their employees’ and potential employees’ social media posts may end up paying the price. Time will tell where the line is to be drawn between employers’ interests and employees’ privacy rights. In the meantime, however, employers should be on their toes, ready to adapt to the changing landscape of privacy rights in the digital age. 

Jill Friedman is an attorney and litigator at Myers, Widders, Gibson, Jones & Feingold, LLP. She has been successful in trying civil cases on behalf of both plaintiffs and defendants. She earned her B.A. in English from UC Los Angeles and her J.D. from University of the Pacific, McGeorge School of Law.

To contact Ms. Friedman, call 805-644-7188 or email jfriedman@mwgjlaw.com.