Category: Employment Law

  • Getting Fired because of your Side Hustle

    Explosion by Charles Dyer from Flickr (Creative Commons License)
    Don’t Blow Up Your Master Plan | “Explosion” by Charles Dyer from Flickr (Creative Commons License)

    When I was on one of the weekly calls with my mastermind group last week, one of my fellow Shankminders asked me to comment on a phenomenon amongst entrepreneurs – working on your side gig while at your full-time job.

    Wait . . . what?! There are people out there sitting at their desks, and while they are supposed to be working for their employer, they are working on their side hustle? I was incredulous, but the members of my group knowingly nodded their heads.

    I thought my head was going to explode. How can anyone think this is ok?

    Am I the only person who read in their employment contract? What are you supposed to do on the first day of work besides read the company handbook? Even before I went to law school, I remember signing off on company policies that said employees couldn’t use company time or company resources to run a side business. At the time (2005ish), I assumed this policy primarily applied to people who might be realtors or the like on the weekend, but now I see how this applies to anyone who has a side business – including bloggers and other social influencers.

    The notion that people are running their side gig during regular work hours raises a lot of red flags for me.

    • If you are an at-will employee, you can be fired for any reason, or no reason at all. Working on a side project when you’re supposed to be doing your work tasks seems like a good reason to fire you, especially if you’re neglecting your work duties to do it.
    • Employers can easily track what employees are doing at work with technology like keystroke trackers. You may be telling your employer a lot more than what websites you’re visiting – like passwords and your company’s trade secrets.
    • Your contract may have a provision that says anything you create during company time or using company resources is owned by your employer. If your contract has this provision, you may unwittingly forfeit your business to your employer, without any options for recourse.

    Some employees have a provision in their contract that says that anything they create during the ten-year of their employment that is related to the work of their employer, is owned by the employer. This could apply to projects done even outside the office.

    In general, I am an advocate of employer’s staying out to of employees’ business – personal or otherwise – and that comes with the obligation that employees keep non-work issues out of the office. I understand why it makes sense for someone to occasionally check social media at work, or like during their lunch break. And unless there is a security reason to prohibit it, employees should be allowed to have their phones at their desks to take phone calls or respond to text messages related to their families, permitted it doesn’t interfere with doing their jobs.

    But work on a side gig while at the office? No no no. (At least, not without permission.) There are too many risks, the least of which is losing the job which is paying your bills while you’re getting your side hustle off the ground.

    If you don’t know what the rules are at your office, go back and read them. Ignorance of the company rules, particularly the ones you signed off on, will not save you from discipline or worse. If you need help understanding how to work on your side gig while at your current employment, talk to a business attorney her knee or a resource that helps entrepreneurs in your community. If you want to see me pontificates more about this and related topics, you can contact me directly or connect with me on TwitterFacebookYouTube, or LinkedIn. You can also get access to more exclusive content that is available only to people on my mailing list, by subscribing here.

  • News Reporter Shea Allen Fired because of her Personal Blog

    TV Camera on the grass by Simon Yeo (smjbk) from Flickr
    TV Camera on the grass by Simon Yeo (smjbk) from Flickr

    Shea Allen was a TV reporter in Alabama who has a personal blog. She was fired after she released a post of “No Apologies: Confessions of a Red Headed Reporter” where she, among other things, admitted she is “frightened of old people,” has “taken naps in the news car,” and that she’ll stop recording if you ramble and she deems you unnecessary for her story but let you think otherwise. You can check of her post for the full list. I’m not sure what to think of her statement that her best sources have secret crushes on her.

    Shea’s boss was not impressed and fired her because the post did “irreparable harm to the station’s image.” She did an interview about the situation with Keith Yaskin from The Flip Side Communications and shared her thoughts about what happened here.

    Shea doesn’t think that she should have been fired since the alleged inappropriate post appeared on her site where she’s sharing her personal views, and not representing the TV station and because she offered to take the post down once she became aware of her employer’s objections to it.

    The First Amendment protects Shea’s right to free expression; however the fact that her statements were not illegal is not enough to keep her boss from firing her, at least if she was an at-will employee. At-will employees can be fired for any legal reason, including the fact that your boss doesn’t like what you posted on your personal blog as long as what you wrote about isn’t protected (i.e., your gender, race, religion, disability, etc.)

    Keith hit me up for an off-the-cuff response interview and here’s what I had to say about bloggers like Shea being fired because of their blogs here.

    What about the statement that she was just being funny? I believe that was her intent; however blogging gives you a voice but not necessarily a voice tone. You can’t guarantee that what’s funny to you will be seen as such by others, especially when it’s your boss reading about things that you do at work that he/she may frown upon.

    I agree with Shea that her situation highlights a “gray area in social media.” It’s because of situations like this that every company needs a social media policy that provides clear dos and don’ts when possible but more importantly provides guidelines for employees when it comes to their online posts, whether they’re using the company’s social media accounts or their own. Companies should remind employees that their posts are permanent and that they should treat each post like a digital billboard that millions of people might see.

    I also think that Shea’s confused about the limits of the freedom of speech. It applies to everyone in the U.S., but it doesn’t protect you from all the consequences that may occur because of what you said.

    If you want more information on this topic, please check out my newly revised book, The Legal Side of Blogging: How Not to get Sued, Fired, Arrested, or Killed.

    You can connect with me on TwitterGoogle+FacebookYouTubeLinkedIn, or you can email me.
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    Please visit my homepage for more information about Carter Law Firm.

  • How To Get a Free Consultation with Ruth Carter

    Photo by Don McPhee
    Photo by Don McPhee

    I’m excited to share that I’ve teamed up with Gangplank in Chandler to offer free legal mentoring services on the first Monday of the month from 1pm until 4pm. I can see 3 people for 45-minutes each every month at no charge.

    Hello Beautiful by Gangplank HQ from Flickr
    Hello Beautiful by Gangplank HQ from Flickr

    My legal mentoring hours are a great opportunity to informally bat around your ideas and questions about your projects and business. Coming to my mentoring hours does not create an attorney-client relationship between us. We won’t have any ongoing obligations to each other unless we decide to create a formal working relationship.

    Gangplank provides free collaborative workspaces in Arizona, Virginia, and Canada. They provide the physical and social infrastructure for creative people to launch their startups. These are wonderful places for freelancers and new business owners to work. In Arizona, Gangplank has locations on Chandler, Avondale, and Tucson.

    I love working with Gangplank. They have a fantastic group of dynamic people who have an enormous amount of creativity and drive. They have a very informal environment and they do incredible work. It fits brilliantly with my desire to be the approachable lawyer who wears t-shirts.

    Skulls & Stripes by Gangplank HQ from Flickr
    Skulls & Stripes by Gangplank HQ from Flickr

    Gangplank in Chandler is located at 260 South Arizona Avenue. Their events calendar shows their mentors’ availability and also all their other events like their weekly brown bag presentations, hacknights, and workshops. They have a wealth of other mentors too who provide assistance in the areas of business, leadership, marketing, design, finance, and technology.

    Gangplank is in charge of scheduling the mentoring hours so please check their event calendar for my availability. You can book a mentoring appointment with me by emailing them at

    Please note: my mentoring hours at Gangplank are not for my ongoing clients with whom I’ve created an attorney-client relationship. These appointments are for people who think they might need a lawyer, people who just want some general legal information, law students, anyone else who wants to chat for an hour.

    You can connect with me via TwitterGoogle+FacebookYouTube, and LinkedIn, or you can email me.
    Please visit my homepage for more information about Carter Law Firm.

  • Employers Can’t Control Personal SM Accounts

    i love my job by peretzpup
    i love my job by peretzpup

    Last week a friend of mine asked about if employers can require employees to do anything with their social media accounts. Apparently, his friend’s employer asked the employees to change the cover photos and avatars on their Facebook pages to some type of advertising for the company.

    If a company wants to be involved in social media, they need to create their own accounts on Facebook, Twitter, and any other site where they want to have a presence. They should also have crystal clear contracts with the employees and/or businesses who manage these accounts that state how they should be used, who will own the intellectual property on the sites, and who will own the accounts and followers if the employee leaves or changes positions or if the company hires another company to manage their social media.

    Back to employers telling employees what to do on their personal accounts – your personal Facebook account is your personal property. Your employer can prohibit you from being on your personal accounts during work hours or work computers and they can discipline you for violating your employment contract on it (as long as it doesn’t violate the NLRA). But to require you to promote the company on your personal page? That would be a big “Oh hell no.”

    I checked out Facebook’s terms of service and they clearly state you must use Facebook Apps for all promotions and that you will not use “your personal timeline for your own commercial gain (such as selling your status update to an advertiser).” If your employment is contingent on promoting the business on your personal account, I see a valid argument that you essentially sold your part of your timeline to your employer.

    On the other hand, companies want their employees to be happy in general and want them to support the product. I see no problem in companies making images available if employees wanted to voluntarily change their profile photos. I think it would be awesome if the company allowed employees to take pictures of themselves with a company mural or sign to use in social media if they were so inclined. This would have to be completely voluntary with no consequences, positive or negative, based on employee participation.

    I’m a big proponent of employers leaving employees alone when it comes to their personal time and social media accounts as long as the employees aren’t violating company policies. If you think your employer is asking you to do something questionable with your social media accounts, check the website’s terms of service and consult a social media attorney (like me) in your community.

    Feel free to connect with me via TwitterGoogle+Facebook, and LinkedIn, or you can email me.
    Please visit my homepage for more information about Carter Law Firm.

  • Ruth Carter’s Speaking Schedule – May 2012

    Ignite Phoenix #5 by Sheila Dee
    Ignite Phoenix #5 by Sheila Dee

    May is going to be an exciting month for me because I have four speaking engagements in Phoenix! I’m really excited to get out and talk about intellectual property and social media law. I like to keep my talks casual, interactive, and provide useful information to the audience.  I hope you’ll come out and have fun with me. Here’s where you can find me . . .

    Trademark Basics
    Wednesday, May 9, 2012 – 6pm
    Midweek Mind Tweak – Co+Hoots
    This is an interactive discussion about what a trademark is, the strength of attendees’ trademarks, and the benefit of registering your trademark with the U.S. Patent and Trademark Office.

    Why You Need a Social Media Policy
    Wednesday, May 16, 2012 – 5pm
    Midweek Mind Tweak – Co+Hoots
    Every company needs a social media policy for their employees, but if you create one that is too broad, you might have to pay over $10,000 for violating the National Labor Relations Act. It’s a problem that is easy to fix, if you know what the law is.

    The Legalities of Blogging
    Wednesday, May 23, 2012 – 12pm
    GP Brownbag – Gangplank Chandler
    A spoke a few weeks ago at Gangplank Academy about the legal side of blogging, and they asked me back to present a condensed version as a brownbag discussion. I’ll be presenting the 8 questions you should ask yourself before you publish a blog post.

    Adapting Licensed Properties to Comics
    Thursday, May 24, 2012 – 7pm
    Phoenix Comicon – Phoenix Convention Center
    I’m so excited to speak at Phoenix Comicon. The thought fills my little geek heart with joy. I’m going to be talking with sci-fi and comic book fans about copyright issues related to creating fan fiction, fan art, and slash fiction. It’s going to be so much fun!

    I hope I get to see you at one or all of my talks!

  • How To Respond If An Interviewer Asks For Your Facebook Password

    Padlocks by Jon Worth

    The news media recently exploded with reports that employers are asking prospective employees for their Facebook passwords. A few years ago, I heard of interviewers asking prospective employees if they could see their Facebook pages. This takes it to a whole new level, and I think it’s disrespectful.

    A lot of prospective employees are desperate for work, so I suspect a lot of them are complying with the request. I think a lot of people are shocked by the question and are saying “yes” without fully realizing what they are doing.

    If a prospective employer asked for my Facebook password, my first thought would be two choice words (seven letters – you figure it out). Hopefully before those words escaped my lips, I’d temper that thought with something like, “I’m a very private person. I use Facebook to connect with close friends and family. I’d rather not give you that information.” I could follow that up with a statement that all my tweets are public if they want another glimpse into who I am as a person online.

    I look at this question like when a police officer asks to look in your bag. They wouldn’t ask the question if they didn’t need your permission. You have the right to say “no” to the cop, just as you have the right to say “no” to prospective employer who asks for your social media passwords.

    When a prospective employer asks for your social media passwords, they are opening themselves up for liability. There are a lot of things an employer can’t ask about in an interview, and they can be sued if they make hiring decisions based on things like race, gender, disability, or religion. If they have access to your otherwise privacy protected Facebook page, they may see information like your race, religion, or disability that could influence their hiring decision and put them at risk of getting sued for discrimination.

    If anyone asks for your Facebook password, whether it’s your best friend or a prospective employer, the answer is always, “No.” If an employer won’t hire you because you won’t turn over your Facebook password, you don’t want to work for them anyway. A concerted effort from prospective employees pushing back against this question could be enough to make it stop.

    UPDATE (3/26/2012): Facebook is warning users not to give their passwords to prospective employers.

  • You’re Screwed if your Social Media Policy Violates the NLRA

    Money by 401K from Flickr

    The National Labor Relations Act (NLRA) protects private employees, in particular their rights to “to join together to improve their wages and working conditions, with or without a union,” and it’s enforced by the National Labor Relations Board (NLRB). Employees are allowed to engage in “protected concerted activities,” which includes discussions about wages and work conditions on publicly accessible social media sites.

    According to a 2010 survey, nearly 50% of small to medium size businesses don’t have a social media policy, and based on the recent report from the NLRB, I suspect many companies that have social media policies, are in violation of the NLRA. If you’re an employer, you need a social media policy, but it’s critical that it complies with the NLRA.

    So, if you fire or discipline an employee based on a social media policy that violates the NLRA, you could be in a world of hurt. Here’s what happens. The employee will file a charge against you with the NLRB. The NLRB will conduct an investigation and have a decision about the merits of the case in 7 to 12 weeks. The NLRB receives 20,000 to 30,000 charges each year.

    Here’s the good news – more than 50% of these charges are withdrawn or dismissed.
    Here’s the bad news – if the case has merit, you’re probably going to be paying a lot.

    If the NLRB decides the case has merit, there’s usually a settlement between the employer and employee – meaning you have to pay the employee for violating their rights. If you can’t come to settlement, the case is decided by an NLRB Administrative Law Judge. The judge may make you provide a remedy to your employee such as giving them backpay and reinstating them in their job.

    In 2010, 8,257 cases were decided by NLRB judges. Employers were required to pay over $86 million in backpay and fines. That’s an average of over $10,000 per case! The NLRB judges also required 1,633 employers to offer an unlawfully discharged employee reinstatement of their job – and most of them accepted!

    So what’s the worse-case scenario if your social media policy violates the NLRA?

    • You have to pay your unlawfully discharged employee over $10,000 in backpay,
    • Offer them their job back (even though you’d rather they be gone),
    • Fire the person you hired to take the unlawfully discharged person’s place if they accept,
    • Deal with the expense and hassle of an NLRB investigation, and
    • Revise your social media policy so it complies with the NLRA.

    If you want to avoid all this financial and professional heartache, make sure your company has a social media policy that’s drafted by an attorney who understands social media and who keeps up with developments from the NLRB. The cost of not doing so is too high.

  • New Rules for Company Social Media Policies

    Snark by Loozrboy

    The National Labor Relations Board (NLRB) released an update last week with the latest developments in social media and employment. In a nutshell, this report says that you can say a lot online about your workplace and your employer and not get fired.

    The law protects employees when they are engaged in a “protected concerted activity.” This includes discussions for mutual aid and protection about wages and work conditions with co-workers and third parties, statements where you are representing your coworkers or are outgrowths of previous employment discussions, and statements that are intended to induce group action. You can be pretty critical of your employer and/or coworkers without getting fired.

    You can still get fired if your posts are defamatory, disparaging, or threatening or are simply gripes or rants.

    The unexpected take-away from this report was how hard it is for employers to draft a social media policy that isn’t overly broad or doesn’t impede a protected concerted activity. You could tell that many of the employers in the report were thoughtful about their policy’s verbiage, and it was still found to be unlawful.

    Based on the NLRB report, here’s what you can’t do with your company social media policy:

    • Restrict all public statements regarding the company,
    • Prohibit disparaging comments about the company on any media,
    • Prohibit employees from communicating with the media without prior authorization
    • Tell employees to avoid identifying themselves as the company’s employees or require approval to identify themselves as an employee,
    • Require all communications on social media sites to be honest, professional, and appropriate,
    • Prohibit “inappropriate conversations” and “disrespectful conduct,”
    • Prohibit engaging in unprofessional communication that could negatively impact the employer’s reputation,
    • Prohibit the disclosure of “confidential, sensitive, or non-public” information unless you provide examples,
    • Require employees to state on every post that they are stating their opinion and not the employer’s (but it’s ok to require this somewhere on their personal accounts), or
    • Require employees to bring “work-related concerns” to the company first.

    The only policy described in the NLRB report that found to be lawful was narrow and specific. It prohibited “the use of social media to post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”

    These policies are hard to write and a lawful one requires the employer to accept that they can’t control what their employees say outside of work and that, in a lot of cases, the employees can voice harsh judgment about the company without being at risk of getting fired as long as it’s a protected concerted activity.

  • Social Media Policies That Every Company Needs

    Texting by Joi Ito
    Texting by Joi Ito

    This post was originally published on The Undeniable Ruth in January 2011. 

    Last weekend I attended a talk by Kade Dworkin to business students on social media strategies for companies. Kade seems to have read every book on this topic and knows the heavy hitters in this area. He suggested that every company have two social media policies.

    Social Media Policy for Employees
    Is an employee allowed to say who their employer is on their blog? What about their Twitter profile? Is there anything wrong with an employee tweeting out, “Grrr…some days I hate my job” or “My clients are making me crazy?” If there are no rules about what employees can and can’t say online when they’re on their own time, you really can’t get mad at them for what they say, unless there is a blatant violation of client confidentiality or a disclosure of a trade secret. It’s disturbing that only 29% of employers have social media policies. Being active on social media sites is part of doing business today, and if you don’t have a social media policy for employees, you’re asking for trouble.

    Social Media Crisis Response Policy
    I had never heard this before, but it makes perfect sense. In the past, a company had more time before a bad review is disseminated via newspapers and word of mouth. Now, a bad review can be spread across the internet in a matter of minutes. While a company should hope and work towards providing exceptional goods and services all the time, there will always be individuals who are not happy. When that happens, it’s critical that the company has a plan in place on how it will respond. The company should already have action plans for dealing with the worst case scenarios that might occur. Additionally, Kade suggested that whoever is in charge of social media should have a strong relationship with the company’s legal department to avoid any major missteps.

    Recall the fiasco that occurred after Amy’s Baking Company got a bad review on Yelp. The main issue wasn’t that a customer was unhappy, but that the owner did a horrible job responding to the bad review. It’s hard for an owner to get a bad review about their staff and service, and it’s critical that the response be one that attempts to resolve the problem privately and show that the company is customer-focused. In this case, the owner’s response caused irreparable harm to their and their restaurant’s reputation. Many people who read the review and the owner’s response said that they will never patronize that restaurant in the future. I have never been to Amy’s and now given the choice, I’ll go somewhere else.

    Kade also suggested that companies never let an intern be in charge of social media because it’s important that whoever is in charge is someone who can make decisions on the fly to resolve problems. This should occur within 30 minutes, not in a few days. A fast and effective response can do as much to bolster a company’s reputation as providing exceptional service.