In the age of social media, it seems everything is transparent. In the case of social media contacts, which can be visible to the public through sites such as Facebook, LinkedIn and Twitter, there are questions as to whether that information can, nonetheless, be deemed a trade secret, and if so, who owns the trade secret.

“It was only a few years ago when businesses began incorporating social media in their marketing strategy,” says Yuri Mikulka, chair of the Intellectual Property Department at Stradling Yocca Carlson & Rauth. “Now, it’s recognized as one of the most powerful marketing and PR tools for companies, whether big or small. In fact, when positioned well, social media data can serve as an important asset of the company, especially for those relying on Web traffic and member lists to generate revenue.”

Smart Business spoke with Mikulka about ensuring social media information receives the highest possible protection and remains an asset even when employees leave.

What constitutes a trade secret?

Generally speaking, a trade secret is information that derives independent economic value, actual or potential, from not being generally known to, and not readily ascertainable through, proper means by the public. A company can enforce its exclusive right to possess and use such information as long as reasonable measures are employed to keep such information secret.

Can you protect your social media profiles as a viable trade secret?

This emerging area of law was preliminarily addressed in two recent court cases. Christou v. Beatport, LLC centered on ownership of a MySpace list used by a nightclub to promote its events. When an employee opened a competitive venture, the club sued him for misappropriating its MySpace profiles. The employee responded that MySpace is public and cannot constitute a trade secret. The Colorado federal court disagreed, noting that ‘Friend- ing’ a business or individual grants . . . access to some of one’s personal information, information about his or her interests and preferences, and perhaps most importantly for a business, contact information and a built-in means of contact . . . ’ and that this information is not necessarily public.

Another case in a California federal court, PhoneDog v. Kravitz, centered on a Twitter account maintained by an employee on behalf of the employer. The departing employee kept the account for his own use but changed its name and erased any reference to his former employer. The employer sued, seeking $340,000 in damages, allegedly based on an industry value of $2.50 per follower. The court rejected the employee’s argument that a Twitter follower list cannot constitute a trade secret.

These recent decisions seem to indicate that even if social media profiles are visible online, they can receive trade secret protection — as long as some portion remains inaccessible to the public and employee passwords and login are required to view the information. Nonetheless, because these decisions were issued during early stages of cases, keep an eye out for new cases in your jurisdiction on these issues.

How do you protect social media information as potential trade secrets?  

Here’s what your company can do:

• Put in place policies, procedures and employee agreements that outline and define acceptable and prohibited use of social media.

• Make it clear in writing that any work-related social media is company property.

• Have employees sign a social media policy. At least one court recognized the importance of the employee’s signature in determining whether the company owned social media contacts.

• Get employee buy-in to effectively enforce your policy by providing training and seeking participation to protect the company’s confidential information.

• Maintain employees’ login and password information to company-related social media, and change it when employees leave.

• Periodically monitor employee online activity because trade secrets lose protection when disclosed. If disclosure is inadvertently made, quickly take down the information.

• Consult an attorney to review your social media policy, agreement and practice.

• Periodically update your policy because law and technology are changing so fast.

Yuri Mikulka is chair of the Intellectual Property Department at Stradling Yocca Carlson & Rauth. Reach her at (949) 725-4000 or ymikulka@sycr.com.

Insights Legal Affairs is brought to you by Stradling Yocca Carlson & Rauth

Published in National

Social media has pervaded the workplace. With more than 1 billion people on Facebook and 140 million Twitter users generating 340 million tweets a day, companies see the potential of social networking and often rush to get on board without formulating a comprehensive policy.

“Take a step back and consider the implications of posting — whether officially in your business, unofficially by employees, or about your business by disgruntled customers or competitors. Develop a plan for protecting your interests on all those fronts,” says Karen C. Lefton, a partner at Brouse McDowell. “That means drafting, implementing and, where appropriate, disseminating your policy before you are the target of a nasty post.”

Smart Business spoke with Lefton about what companies should consider now with social media.

What can companies do to protect themselves against disparaging statements made by customers or competitors? 

Anyone who posts defamatory statements about your business may be subject to a defamation action. There must be a false statement of fact, published to at least one other person, with the requisite degree of fault — negligence or actual malice — resulting in damages. It is important to recognize that ‘opinion’ is protected. This is especially significant in the social media context, where reviews are pervasive and even encouraged on companies’ websites. When you do this, you invite potentially negative comments, but not ones that would be actionable in defamation.

Does that mean reviews are exempt from defamation lawsuits?

Reviews are usually excluded because opinions are protected speech. A false statement of fact is essential to a successful defamation claim. However, if someone says, ‘There was a cockroach in my oatmeal,’ that is demonstrably a statement of fact. If it is false, the restaurant where the oatmeal was served would have a potential defamation claim.

Whom would you sue? 

The poster. Internet Service Providers generally have immunity for the posts on their sites, but the poster does not. Historically, defamed entities were reluctant to take action against an individual poster because the cost far exceeded the payoff. However, many homeowners’ insurance policies cover individuals for actions in defamation, which may provide some recompense for defamatory posts.

What if the harmful statements are made by your own employees? Can you fire them? 

Be very cautious. Section 7 of the National Labor Relations Act protects employees who engage in concerted activity, so employees who post disparaging comments about wages and working conditions — including bad things about the boss or the business — are usually protected. This applies as much to employees in nonunion settings as to those in unionized workplaces.

An employer may be found to have violated the act not only by disciplining a worker for what he posts but for merely having a policy that could be interpreted as chilling an employee’s Section 7 rights. Your policy governing employees’ use of social media must be very carefully drafted.

Are there pitfalls if employees post as part of their job, sanctioned by the company? 

Absolutely. According to the Society of Human Resource Management, 68 percent of businesses require employees to use social media as part of their job. Of those, 73 percent give no training in how to use it appropriately.

Every company with a social media presence should have a policy governing its official website and social media accounts, including identifying those employees authorized to speak on behalf of the company and training them to ensure that private information — whether about employees, business plans or anything else — does not leak out. This is a growing problem because communication on social media is so quick and casual that it often does not get the same attention as a printed marketing piece. It should get more, as it will last virtually forever.

How can you avoid social media pitfalls?

Get expert help drafting your policies. Implement them. Follow them.

Karen C. Lefton is a partner at Brouse McDowell. Reach her at (330) 535-5711, ext. 341 or klefton@brouse.com.

For information on Brouse McDowell’s Labor and Employment Group, visit http://www.brouse.com/OurPracticeAreas/tabid/55/MainAreaId/5/Default.aspx.

For a complete bio of Karen C. Lefton, visit http://www.brouse.com/OurAttorneys/AttorneyProfile/tabid/90/aid/252/Default.aspx.

Insights Legal Affairs is brought to you by Brouse McDowell

Published in Akron/Canton

On November 28, the 2012 Midwest Social Media Summit will be held at Executive Caterers at Landerhaven in Cleveland, OH. This one-day-conference will offer tips and insights from social media experts and top business leaders who will help you reconsider your strategy or validate your approach.

For more information and to register, click here.

And as a special bonus to our Smart Business readers, we're giving away five FREE tickets to the event! To enter the contest, simply do one of two things:

  • Visit the Smart Business Twitter page and follow us. Then just send out a tweet that says, "I don't want to be anti-social. I want to attend the 2012 @Smart_Business Midwest Social Media Summit!"
  • Visit the Smart Business Facebook page and like us. Then post to the page, "I don't want to be anti-social. I want to attend the 2012 Smart Business Midwest Social Media Summit!"

We'll draw the winners on Monday, Nov. 19.

For additional information, please contact Anne Hydock at ahydock@sbnonline.com or (440) 250-7041.

Published in Akron/Canton

A frenzy arose recently when the Associated Press reported some hiring companies were asking potential job candidates for their Facebook passwords. While the practice is not nearly as widespread as the news story originally suggested, the idea of such an invasion of privacy hit a strong nerve and sparked a national discussion. Maryland was quick to pass legislation prohibiting employers from asking to access an applicant’s social media profiles, and other states have proposed similar legislation.

So where should the line be drawn? If asking job applicants for Facebook passwords is taboo, can you Google them? If sending friend requests is too forward, can you connect with applicants via LinkedIn?

There are no correct answers because there are no concrete rules, but before you take to the Net to investigate your next new hire, ask yourself a few questions.

What’s to gain?

What do you want to learn by investigating a job applicant online? Federal Equal Employment Opportunity Commission laws dictate that companies make hiring decisions based on job-related information only. While a basic Google search is unlikely to provide much job-related data, it could easily divulge information that puts an applicant in a protected class — their race, color, religion, sex, national origin, age, disability or genetics. Certainly, some of the same information would be disclosed during an interview, but what if after reviewing one candidate’s lackluster resume, you decide interviewing him or her would be a waste of time?

However, out of curiosity, you Google the applicant anyway and learn she’s an African-American woman in her late 50s. Now there is the potential taint of discrimination attached to your decision not to interview her.

Can you handle the truth?

What will you do with the information you discover? Remember the famous courtroom scene in the movie “A Few Good Men” in which Jack Nicholson’s character screams, “You can’t handle the truth!” Can you handle the truth? Are you ready for what you might learn about a job applicant online?

What if through connecting with your top candidate on a social networking site, you come across a fundraising campaign for his child with muscular dystrophy? You might assume if you hire him, your company’s health insurance premiums would increase or that he would be unable to fully commit to the job with a special needs child at home.

What if you discover the young go-getter you are about to hire as an executive assistant has been moonlighting at a questionable nightclub? You can’t unlearn facts once you’ve learned them, so can you trust yourself to make a completely unbiased hiring decision?

Can you be certain that what you find is a current and accurate representation of the candidate?

Protection concerns

If your parents were right and you’re judged by the company you keep, for better or worse a company is also judged by the people it employs. In this age of rampant online recklessness, it’s understandable that employers would want to protect their company’s reputation from the damage even just one employee’s careless indiscretion could cause.

Remember the Domino’s Pizza incident when two employees posted a video of themselves sabotaging a submarine sandwich? Personal posts could be a red flag that the candidate you are about to hire doesn’t always display the best judgment.

But how can you be sure those party pics you found tagging your star candidate were posted with her knowledge or are not from 10 years ago when she was still a college coed?

Social media offers companies an alluring platform to connect with their audiences, whether that’s customers, employees or even prospective employees. But company representatives need to use discretion if they intend to access social media or any online tools in the hiring process. Some well-intended prying could be deemed discriminatory or lead you to pass up a potential star.

Poor judgment, whether it is on the part of an individual or part of a company practice, will always carry negative consequences.

John Allen is president and COO of G&A Partners, a Texas-based human resources and administrative services company that manages human resources, benefits, payroll, accounting and risk management for growing businesses. For more information about the company, visit www.gnapartners.com.

Published in Houston

Let’s face it: We all want to be liked. But when it comes to being liked in the social media space — specifically Facebook — many companies make the mistake of measuring the quantity of the “likes” they receive as opposed to the quality.

The reality is that the quality of the likes is often much more important and relevant than the quantity of likes. That fact was driven home to me by the case of one of our clients.

Recently, the client told us that it want to gather more than 1 million likes on its Facebook page. The client’s page receives a steady viral increase of 500 to 700 weekly new likes, and the likes are “quality” likes with relevance to its company. They are coming from individuals who have a special interest in the company, who want to participate in conversations and are actively sharing our client’s posts on their personal Facebook pages and within their social contact spheres.

Looking at the analytics of the individuals who like our client’s page, we’re finding that in addition to being highly activated and engaged, they are also target-market and geographically relevant. The likes are happening because customers are actively sharing the content, pushing new people to discover the page, engaging in relevant discussions and are coming from people specifically seeking the company online in order to socially connect.

Thus far there have been no ad buys and there have been no contests launched to also supplement growth efforts. Their collection of likes — now in excess of 50,000 — has come through social networking efforts.

But internally, our client is facing the same struggle that thousands of companies currently face when it comes to evaluating their social media ROI. Managers within their organization feel that in order to justify the relevance of social media in their marketing mix, they have to obtain as many likes as possible. But getting people to simply click the “like” icon on a Facebook page is not difficult.

There are many ways to quickly inflate page likes. Contests spike likes but most of the entrants are only interested in winning the prize and not in making a purchase. You can buy packages of page likes but the majority of “purchased” likes are typically not buyers and are not geographically relevant.

Facebook ad campaigns, which are similar to Google pay-per-click advertising, can also help drive new likes. Facebook ads allow an advertiser to drill down to target potential brand loyalists and customers by a variety of geographic and psychographic denominators.

The issue is that once you stop the contest or the advertising campaign, your number of new likes will drop off considerably. You potentially will see an exponential increase in likes during the campaign period.

But what good are these new likes if people liking you possibly only visit your page once? If they initially like you and then never come back, they aren’t paying attention to what you’re saying, they’re not engaging with you and they have no interest in buying your product or service — or telling others to buy your product or service.

The relevancy in social media is to have people talking about you and with you, and ultimately becoming your brand evangelists. Statistics have shown that 90 percent of consumers trust peer recommendations and 70 percent of consumers trust recommendations online.

Companies need to turn their attention away from trying to use likes as a popularity contest. As a company leader, you need to realize that if you have a Facebook community of 1,000 consumers who are actively engaged, with analytics showing huge impression rates, it is much more valuable than a community of 10,000 who visit your page, click “like” one time, then seldom — or never — come back.

Adrienne Lenhoff is president and CEO of Buzzphoria Social Media, Shazaaam PR and Marketing Communications, and Promo Marketing Team, which conducts product sampling, mobile tours and events. She can be reached at alenhoff@shazaaam.com.

Published in Detroit
Monday, 14 November 2011 21:03

The changing role of salespeople

A salesperson’s job is to make contact with those that are potentially in need of the products or services the salesperson has to sell. They need to utilize as many tools as possible to find a way to make contact with the “right” person.  Historically at Blue Technologies, our sales force would hit the streets, knocking on doors and talking with businesses within their territory to find out what they are currently using for their office equipment needs. Typically, they could find out enough information during that cold call and use that information to get a chance to show their products.

The rapid advancements in technology have given consumers and businesses the ability to connect faster than ever before. The fast growth comes with a downside, however — the options are now endless. Users must sift through mountains of white papers and case studies to determine what the best option is. A number of users seek out references and opinions on the best products and services on the Internet. But, users and sales forces now have a tool that can help them connect in ways they never could have before — social media.

An example of how social media has changed a salesperson’s role is our Managed Print Services (MPS) division. This group has recently gone through a transformation as to how they do their prospecting. MPS allows us to monitor and manage a businesses’ printer fleet. This has become an asset to companies, as it relieves the amount of time that their IT staff spends just maintaining their output devices. We have seen a change in how we need to approach and sell this service. The process begins with a list of companies that have a high number of employees, or more specifically sixty printers or more in their network. The MPS professional’s job is to make contact with the right person at these companies. They now utilize tools such as LinkedIn, Jigsaw and Twitter to find out as much information as possible prior to even making a phone call. The amount of research that can be done prior to the first meeting has allowed our sales professionals to already know something about the person, both personally and professionally. When a salesperson can make a connection with a prospect because they share an alma mater, colleague or friend, that is priceless. In an industry that is flooded with competitors, differentiating  yourself is one of the most important keys to setting you apart from the competition. The bottom line is that people buy from people. In today’s world, buyers would much rather buy from someone that they can trust, and if, for instance, their brother’s best friend knows the sales rep, then that trust bond can be built faster than ever before.

Social media channels allow the salesperson to become a consultant to their users. Our sales force now utilizes LinkedIn as much as possible. They are connecting with their customers and posting events. They are sharing their knowledge with their connections and providing a resource to buyers seeking out their products.

Knocking on doors to find out information still happens today and will not go away,  however, now when we knock on the door we can already have the ability to know who we need to ask for and possibly what problems their organization is currently experiencing. Knowledge is power — the more you know the better it is for both buyers and sellers.

For more on social media and business:

Social media and recruiting

Social media and marketing

Embracing social media

Kelly Waite is the Marketing & Database Manager of Blue Technologies. Reach her at (216) 271-4800 or kwaite@btohio.com. Visit Blue Technologies on FacebookTwitter and LinkedIn.

Published in Cleveland
Monday, 14 November 2011 20:48

Embracing social media

You are now officially out of excuses. Social media is here to stay, and if you're not on board, your business may be left behind. Even presidents and CEOs who previously had no idea of the major impact social media could offer are realizing the importance of timely and direct customer interaction.

Blue Technologies started incorporating social media in their business practices over a year ago. At first it was to have an online presence in each social media channel. However, they needed to get more out of it.

Blue Technologies brought in a recent college graduate to serve as a marketing intern. It was natural that they assigned her to take over the social media outlets, because she had already been using them in her personal life, and it was an easy cross-over to business social media. From there she was able to teach the staff how beneficial these programs could be to the company and how to utilize them in their sales efforts.

The social media world was meant to be fun, hip and young, but with its ever-growing popularity, all generations of employees must get on board. The ability to connect to current and new audiences and attracting them to your brands is priceless. Incorporating Facebook, LinkedIn and Twitter in your advertising materials and websites is a simple and cost-effective way to send your message to places you never could have before.

It's true that young people invented social media and are generally the ones that eat, drink and breathe it. And yes, they might be the only ones who truly get it and are able to use it to its full potential, but that's only because they have made social media a part of their everyday lives. All it takes is a little time and effort and you too can become proficient in social media.

It’s not a secret that younger generations want to showcase their social media skills — it makes them feel important; like they have something to offer since they don't have much — if any — real life work experience. Companies would be well-served to take advantage of this enthusiasm to enhance and grow business. Bringing in a younger person to spearhead your social media efforts is win-win. You get all the benefits of a social media presence, and for the employee, social media is not a job, it's fun.

Also, utilizing social media as a means for research has cut down the amount of time one has to spend looking for information to provide to current/future customers, as well as potential job candidates. Connecting the social media generation to the baby boomers allows for an easy transition of being able to share knowledge from one generation to the next.

Social media isn’t our future, it’s already here. Embracing social media is a way that all generations can come together and learn how to better understand and better improve business practices.

For more on social media and business:

Social media and recruiting

Social media and marketing

The changing role of salespeople

Kelly Waite is the Marketing & Database Manager of Blue Technologies. Reach her at (216) 271-4800 or kwaite@btohio.com. Visit Blue Technologies on FacebookTwitter and LinkedIn.

Published in Cleveland
Thursday, 10 November 2011 12:15

Social media and recruiting

Cleveland, Ohio-based Blue Technologies is the title sponsor for the 2011 Midwest Social Media Summit. As a part of that sponsorship, Smart Business sat down with Blue Technologies to see how they have implemented social media into their business.

In the video below, Betsy Meyerson, Sales Trainer & Recruiter for Blue Technologies, discusses how a company can utilize social media in its recruiting efforts.

For more on social media and business:

Social media and marketing

Embracing social media

The changing role of salespeople

Betsy Meyerson is the Sales Trainer & Recruiter for Blue Technologies. Reach her at (216) 271-4800 or bmeyerson@btohio.com. Visit Blue Technologies on Facebook, Twitter and LinkedIn.

Published in Cleveland
Thursday, 10 November 2011 12:07

Social media and marketing

Cleveland, Ohio-based Blue Technologies is the title sponsor for the 2011 Midwest Social Media Summit. As a part of that sponsorship, Smart Business sat down with Blue Technologies to see how they have implemented social media into their business.

In the video below, Kelly Waite, the Marketing & Database Manager of Blue Technologies, discusses how a company can utilize social media in its marketing efforts.

For more on social media and business:

Social media and recruiting

Embracing social media

The changing role of salespeople

Kelly Waite is the Marketing & Database Manager of Blue Technologies. Reach her at (216) 271-4800 or kwaite@btohio.com. Visit Blue Technologies on FacebookTwitter and LinkedIn.

Published in Cleveland

There’s no finish line in technology, and Brian Deagan loves it.

“Nothing’s ever done; something new is always being created and that just intrinsically creates opportunities to build companies,” says Deagan, co-founder and CEO of digital marketing services and software developer Knotice Ltd.

But along with that comes some growing pains. The company over the past five years has exceeded 500 percent growth in employees and annual revenue; however, the need to hire at a quick pace is not the only concern Deagan has.

“Keeping up with some of the basic changes and things that are going on in the market can be disruptive organizationally, but at the same time, you need to be able to stay ahead of everything, stay on top of it and stay at the pace you are at,” he says.

One of the keys is not just a business plan, but one that is derived from an operational model that is used and leveraged on a day-to-day, week-to-week, month-to-month basis.

“That is one of the key things to keep the business headed in the right direction and on track,” Deagan says.

The model should drive the plan, but it tends to be more operationally oriented than, for example, a 40-page business plan, which is used more as a communication tool.

“Don’t confuse something that is a communication tool versus an operational tool,” he says. “Have them related and driven by the operational plan but don’t try to have one be both.”

The business plan is important to be able to communicate the plan of the business to external and internal constituencies. The operational plan’s role is to be effective in defining growth targets, meeting those targets, and then modeling out what is needed to support that growth.

The operational model in synch with the business plan gives a one-two punch to fight threats to derail growth.

“That is one of the key things to keep the business headed in the right direction and on track,” Deagan says.

The term “on track” for Knotice means a five-year goal of going from $10 million in revenue to $100 million.

“The primary way to do that is just sort of keep your eye on the ball and build the company brick by brick,” Deagan says. “So often, when you are growing and you are building something, if you are not really focused on the here and now, you have to have an idea where you’re going.”

If you spend too much time worrying about the future and not just building the business the way it needs to be done today, you’re not going to go anywhere.

“There is a point when you are supposed to climb up to the top of the trees, get a good lay of the forest and understand where you need to create that path through the forest,” he says. “But at some point, you just need to get back down on the ground and start chopping down trees.”

Hire a complementary management team in terms of personal and skill sets, and it will serve you well over the years.

“It’s much different when you’re in a room with six people banging something out to take the company to the next level versus when you are closing in on 100 people and you need to take the company to that level,” Deagan says. “I think it’s important that as the company evolves, you are tapping the characteristics and qualities that are most important to company growth. I’m a firm believer that everybody can do that to some extent. You just need to be conscious and aware of it.”

Weighing feedback

Consumer trends rise and fall daily, and a company needs to be aware of huge shifts that may influence its long-term direction.

By evaluating customer feedback, it can help you sort out consumer behavior to see if it is a trend or just a fad.

“There may be a consumer behavior or a new technology that you need to address in the short term, and you work with your customers to understand how to help versus just reacting to a trend in a manner that might not be prudent or well-thought-out,” says Brian Deagan, CEO of Knotice.

Categorizing customers may involve some judgment decisions, but it is necessary.

“It’s critical to get feedback and engage customers that are both early adopters, as well as customers who aren’t, to make sure the things you are going to do have a broader appeal and don’t just focus on a specific niche,” he says.

Getting perspective from both is a key step.

“You may not necessarily want to do something for an early adopter ? and it could be indicative of the future, but it could also be indicative potentially of a niche segment,” he says. “Get feedback from different segments of early adopters and the majority users and balance accordingly.”

How to reach: Knotice Ltd., (800) 801-4194 or www.knotice.com

Published in Akron/Canton
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