Can Companies Prohibit Employees from Gossiping? [e143]

January 26, 2015

Nasir and Matt discuss the app that allows employees to post anonymous messages about their employers. They also talk about the legalities of banning gossip in the workplace.

Full Podcast Transcript

NASIR: All right. Welcome to our podcast. My name is Nasir Pasha.

MATT: And I’m Matt Staub.

NASIR: Did I have an accent there? I feel like I had a strange accent there all of a sudden.

MATT: I didn’t even notice. It was just so short that I was very thrown off.

NASIR: Oh, actually, that’s right. I’m supposed to say, like, “Welcome to our program. This is where we cover business law in the news.” But everyone knows what we’re doing here. If you don’t, then why are you listening to us?

MATT: Yeah, you should be able to tell by the thumbnail picture of two faces.

NASIR: That makes it very clear.

MATT: I think we’re wearing suits in the photo.

NASIR: Well, that’s the law part. The business part is just, like, our faces. Very clear.

MATT: We mean business.

NASIR: Before we get into our topic, I want to do an update from last Friday’s episode.

MATT: The glitter?

NASIR: Yeah, did you see how much? Last Friday, we covered a website called ShipYourEnemiesGlitter.com and, long story short, this guy who created this website out of Australia got a ton of sales but didn’t want to do it anymore and so put up his website on Flippa.com which is basically they act as an intermediary between a seller of a domain name and I think the website too. I think it comes with the whole package. Guess what he sold it for after one week? It ended two days ago.

MATT: Well, I can’t guess because I already know what the answer is. What I would have guessed, probably, like, no more than $50,000 if I would have not known about it.

NASIR: For some reason, I actually thought it was going to be more. When we looked at it after a day or so, it had already got a number of bids. So, it’s $85,000 it ended up being sold for, 345 bids. Again, like, it got a lot of publicity even for the Flippa campaign so I thought it would go for a little bit more but that’s a pretty good chunk of change there.

MATT: Yeah, especially from what I can tell, he essentially just put the website up. The first day got tons of publicity and then he sold it.

NASIR: Yeah.

MATT: He probably pocketed all the money too from the people that paid and look at the return for how short a period of time that was. I think he’s doing pretty well.

NASIR: Yeah, I think that’s the case because it looks like the website itself had $20,000 in sales and 2.5 million visits in four days. Obviously, those visits were a result of all the viral activity and I doubt that’s going to sustain itself but I’d like to see what these guys end up doing with it later on if they, you know, anything more than just glitter.

MATT: That’s true. Anything can explode out of the package – snow.

NASIR: I think we should go on to our next topic but we did cover the episode. We tried to find videos of people online. We couldn’t find it because there wasn’t any yet and I think there’s some out there now. So, if you want to look it up, ShipYourEnemiesGlitter.com.

MATT: Yeah, I’m still sceptical that’s real – at least the one that we saw.

NASIR: Yeah, I agree.

MATT: So, Memo is what we’re talking about today. It’s an app as most things are these days. A new messaging app, but this is for office gossip. So, basically, from what I can tell is it can’t be fake. So, people that work for a company – let’s say you work for Nike – you either log in through your Nike work email or through LinkedIn to verify that you work for this company, and then you get thrown in to this essentially just a gossip spot where you can just post these different memos – hence the name Memo – and you can just kind of blast people within the company. I mean, you can pretty much do whatever you want. It’s just kind of a free-for-all in there and I guess some companies are not taking too kindly to this because they don’t want their employees gossiping about probably them most likely – the managers or the owners of companies. There’s nothing preventing that manager from signing up as well and I guess reading what people are saying about him or her which probably is anything. Well, some people like their managers but I think a lot of people probably don’t.

NASIR: And I suppose this wouldn’t work in, like, a small business with only a few employees because that would get really awkward quickly, and it looks like they have a private section and a public section. So, there are circumstances where, you know, you don’t mind complaining about your company or your boss, but it’s still not something you would maybe feel comfortable with complaining publicly, even though it is anonymously which makes it interesting. But then, it gets me thinking that, okay, let’s say, for some reason you’re not doing it because you’re not allowed sharing non-confidential information or something like that, let’s say you work at Apple and you’re complaining about, “Oh, I don’t think the new iPhone 7’s feature is good. I think they’re taking it the wrong direction or whatever.” What if somehow someone else gets on that board and somehow fakes their way into the board by saying the work for Apple? Because, if it’s through a LinkedIn account, anyone can just put, “I work for Apple.” It’s not like Apple needs to approve that. I don’t know.

MATT: Yeah. Well, it said they have to validate it through their work email or LinkedIn but, I mean, you can put whatever you want on LinkedIn so it doesn’t seem like it’s too big of a hurdle if someone really wanted to do it. Yeah, I should have also mentioned this; this is anonymous so you obviously don’t know per se who’s posting these things. But, like you said, if it’s a smaller company, you might be able to figure it out.

NASIR: Yeah.

MATT: There’s already been a couple of businesses that have sent cease and desist letters to this app, telling them to stop, and they’re not even in full-fledged operation mode. I think they’re in beta testing right now – private beta testing, so it’s 10,000 users. So, it’s still pretty young, pretty new, and they’re already getting a lot of pushback or at least, you know, if you look at (00:05:23 unclear) some pretty significant pushback if they kind of expand this out and add a bunch more users. So, on the legal perspective, there’s a few things. Like, one, obviously, if these people are using it on their personal phone while working, that’s a whole problem.

NASIR: Yeah.

MATT: But, if they’re on their break or outside of work and they’re just posting stuff and they’re not, you know, defaming anyone, you know, there’s still confidentiality things, as you mentioned, but what’s the difference between that and just talking to someone? I guess you’re putting it in print, but you know.

NASIR: There’s already that website, I think it’s called Glassdoor.

MATT: Yeah.

NASIR: I’m sure there are other sites just like that and basically it’s a public forum. You go on there and you can post about your interview process or your work experience there before you accept a position there, for example. So, I agree it’s nothing new. But the couple of letters that they’ve received, I think one from VISA and then Boeing company and Hewlett Packard – I’m sorry, those three are said to have circulated internal messages discouraging employees from using the app even though apparently VISA and Hewlett Packard denied contacting employees. So, VISA sent a letter directly to this app company, but that was centered around not using VISA’s logo and the name of the company – I think that’s a separate issue whether they have a viable claim against that; there might be some fair use issues there.

MATT: Yeah, that’s true.

NASIR: But the real question for small businesses is can you even restrict these kinds of speeches, right? I mean, this kind of speech – in the sense that gossip does, you know, they say this is a gossip site; I think that’s a misnomer because it’s more about venting than anything.

MATT: Well, it depends on how you define gossip. I can be pretty broadly defined and I don’t think that’s really the big issue here but, to me, it’s more whether people are using it in the workplace or outside of the workplace. Like I said before, if it’s outside of the workplace, you know, there’s obviously other issues like slandering someone, leaking something that’s confidential, as I was saying before, but it’s kind of hard to prevent that stuff from happening. I could go to a happy hour today and sit there by myself at a bar and listen to a group of people that left their work together and hear them saying terrible things about the people they work with and that’s out in the public. That’s not anonymous. So, I think the focus here is on preventing it in the workplace or at least while they’re working.

NASIR: I agree with you. In fact, by these companies saying that you can’t participate in this app, they’re not even talking about what you can’t talk about or whether you can use it during work time or not, but by saying that, I think they get into trouble similar to these blanket no-gossip policies, right?

MATT: Yeah.

NASIR: The National Labor Relations Board has already ruled on this. If you have these broad – I think we’ve talked about this – if you have these overly broad or ambiguous policies about no gossip or not speaking about certain things, that may be an unlawful policy because it may infringe on some free speech issues. But, if you have a narrowly tailored policy – and I’m sure these companies do but – if you want to focus on not releasing confidential information or even encouraging a culture that, “Look, if you have an issue, whether it’s a criticism or not, bring it to the table so we can discuss it and address it instead of just bringing it out in public,” and I think that’s a fair enough policy so long as there’s caveats to everything from whistleblowing to being able to have an open-door policy of certain issues in the workplace.

MATT: Yeah, the more I think about it, I think you were right before, and gossip would be something like, “Oh, I heard so and so went on a date with so and so,” obviously, I haven’t used it but I imagine this is more, “I hate so and so. They’re incompetent. Blah blah blah.”

NASIR: Yeah. To me, gossip, I have a more general approach to gossip. I think gossip also entails basically any time to speak to somebody about a third person that’s not there negatively without any real purpose, substantial purpose in the sense that, if you’re just talking just to bash that person – and, look, I’m guilty of that too sometimes because sometimes it makes us feel good, we make fun of other people and so forth but – unless there’s a purpose to it, really, I think that’s gossip and it’s not a good thing to have in the workplace. There’s no doubt about that. It can be really a poison pill in the office, for sure.

MATT: See, I say a lot of things behind people’s backs but it’s all positive. So, that wouldn’t be gossip. I never say anything nice to someone’s face.

NASIR: I think gossip has a negative connotation. I just stand behind people and just talk bad about them. I think that’s gossip, too.

MATT: I’m pretty sure that was something from The Office when Michael Scott said, he said something really nice about, I think, Pam and he’s like, “Oh, you know, I would never say that to her face.” Oscar is like, “Why not?”

NASIR: Why not? So, the app’s kind of cool but, in a way, it’s like, why employees would get so into this is only because… I think the only reason employees would get into this is if your company already has a culture in which there is no outlet to vent. What do you think about that?

MATT: Yeah, I agree, and I’m really interested on the types of people that do use this, especially since it is anonymous, because it’s company-wide so I don’t know. If you have a nationwide company and someone’s posting something in Phoenix but someone else is posting something in DC, there’s no connection there other than that they work for the same place. So, who really cares?

NASIR: True.

MATT: And so, I don’t know if there are specific carve-outs for the individual cities or individual stores. Who knows?

NASIR: This reminds of you know how Facebook is coming out with their new business social, I figured it’s called Facebook Business or something like that., right? It’s basically going to be a social network for your company and I’m wondering, like, they’re going to have the same problems unless the company is going to be able to access everything that’s going on in that little network which kind of defeats the purpose of even having a social network in that respect. They’re going to have the same problems in people venting and so forth. And so, I wouldn’t be surprised if this is not the last time we hear from this about this subject matter.

MATT: Oh, yeah, you’re definitely right and I’m more old school; if I had something to say, I’d probably just tell someone in person – not the person but…

NASIR: You’d just go up to somebody and just punch them in their face. I know you.

MATT: I don’t like you.

NASIR: You’re very old school.

MATT: Yeah, that’s how business used to be done. Let me tell you.

NASIR: Challenge them with a duel or something.

MATT: I wonder if you can do one for sole proprietors so you’re just venting to yourself. Actually, I’m pro this because anything that creates less venting on other forms of social media that I have to see – like, Facebook that I don’t care about and have nothing to do with – I’m all for it.

NASIR: Especially since they don’t even speak freely so it’s always like passive aggressive. Like, “Oh, I’m so upset about something that happened at work but I can’t tell you about it.”

MATT: Yeah. I mean, I know more things about people I went to high school with that I didn’t even speak to in high school than I care to know about.

NASIR: Yeah. All right. Okay. I think that’s our episode. Don’t forget to send in your topic suggestions and ideas and questions if you have them at ask@legallysoundsmartbusiness.com.

MATT: Yeah, keep it sound, keep it smart.

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Legally Sound Smart Business

A business podcast with a legal twist

Legally Sound Smart Business is a podcast by Pasha Law PC covering different topics in business advice and news with a legal twist with attorneys Nasir Pasha and Matt Staub.
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