Corporate Archives

Debt Collectors Using Social Media: Is It Legal?

Like many other industries, debt collectors are using the tools at their disposal to locate debtors and collect outstanding debt; social media and even texting have come into play. It leaves some wondering if it is legal and/or ethical.

According to the FTC, the Fair Debt Collection Practices Act doesn’t prohibit this, as long as debt collectors are staying in compliance. This can be a bit more tricky with social media compared to other methods for contacting debtors.

Along with the more standard compliance issues, including being upfront as to the reason for the contact, not using deception to get debtors to contact the collection agency, and providing full disclosures, there is one area that can get fuzzy when it comes to social media.

It’s standard law that debt collection agencies cannot discuss or disclose information to third parties. In a traditional sense, if a collection agency calls a home to speak with someone, they can discuss specifics with the spouse, for example. When it comes to social media, it means a bit more than this.

First, it prohibits debt collectors to post information on a person’s social media site in a pubic facing venue. This means that they can send a tweet directed at the user, post on someone’s Facebook wall for the world to see, or reach out publicly through a message board or forum. This, for example, is wildly problematic:

Second, it takes it a step further and makes the waters more muddy. In many social media venues, one would have to join the user’s social network (become “friends” on Facebook, or mutually follow each other on Twitter) to communicate through private messaging or Direct Message, which would fulfill the third party disclosure compliance. However, in a recent FTC investigation, it was determined that “[D]ebt collectors may violate the FDCPA and/or the FTC Act by . . . requesting to join debtors’ social media networks (for example, by sending a ‘friend request’ on Facebook).” So that’s not an option either.

What’s left for debt collection agencies as far as using social media to identify and communicate with debtors? Since direct communication can be risky, they can use social media monitoring to

Learn more about the debtor’s current address or other identifying information, such as a cell phone number, if the person has their profiles set to public vs private

Identify connections through social networks that may help them locate the debtor to make contact

Learn more detailed information about the debtor, including if they are currently employed, which would indicate that they have an income with which to repay the debt

While social media and mobile devices have potentially made life a bit easier for debt collectors, the laws are still as stringent as they are for traditional means of contact. Of the two, text communication appears to be the safer for direct communication. However, social media background checks and social media research can be incredibly helpful for this industry if used correctly.

Where Chipotle Went Wrong With Social Media Policy

Social media policies are good to have in place, but as we’ve seen this week, it’s a good idea to review the policy and make sure it has a legal standing. This was not the case for Chipotle, and it landed the company in some legal trouble.

Long story short: An employee posted a tweet about his opinion of his employer, stating that “nothing is free, only cheap #labor. Crew members make only $8.50hr how much is that steak bowl really?” He was told that this violated Chipotle’s social media policy, which bans “disparaging, false” statements and was asked to delete it, which he did. While disparaging, it was not deemed false and was in fact a permissible statement to make, although probably not the best tweet to post, especially directed at your employer.

After this, the employee again turned to social media to encourage coworkers to sign a petition regarding employee breaks. He was then fired for doing so.

The case was taken to court, and found that Chipotle’s social media policy was illegal and ordered the company to rehire the employee, provide back pay for lost wages, and post signage that indicates some of their employee policies, especially the social media policy, were illegal.

Why did this happen?

While Chipotle’s social media policy strictly banned employees from posting false and disparaging content on social media, the judge stated that the content has to be proven to have a malicious intent; in this case, the judge decided it was not malicious in nature. Lesson learned – posting negative or misleading content cannot be the sole basis for violating a social media policy; malicious intent must be proven.

The social media policy violated an employee’s protected concerted act. Examples of this type of protection include employees talking with management about pay or working conditions, and employees discussing other workplace issues outside of pay among themselves. Circulating a petition was within the employee’s rights in this case, and cannot be deemed a violation of social media policy. Lesson learned – a social media policy cannot be general in nature and must take into account various types of content that may be posted, including those falling within an employee’s protected concerted activity.

Social media policies are important, but we’ve seen that they are being closely scrutinized in the legal world. It’s important to have one in place, but even more important to have one that falls in line with legal issues to save further time and trouble. This is one example of how a social media policy can go wrong; I anticipate other similar suits to follow across the corporate world going forward until the kinks are worked out.

Use Social Media Monitoring to Grow Donations, Contact Lists

There’s a new twist in using social media monitoring, thanks to geo-based monitoring capabilities. This is good news for those interested in increasing contact lists for email marketing, or even for non-profit organizations seeking to increase their donor base.

Below is a great example of how geo-based social media monitoring can be used effectively. With this newer piece of social media monitoring, a virtual “fence” can be set around a particular area to see real live social media posts from that area. From there, keywords can be utilized to further enhance the results if needed. What results is a list of individuals and their public social media accounts for targeted engagement.

A park is looking to increase donations to make improvements on their walkways, hiking trails, and other amenities. Outside of traditional means of gaining visibility and traction, geo based social media marketing can easily identify those who use the facilities to market directly toward them. Once they identify visitors via social media accounts, it is easy to engage with them on social sites, and use the site’s advertising platform to message this group directly. It can be effective in encouraging email signups, bring awareness of the project to a targeted group, and increase website visits, which may turn into donations.

Here’s why it works and provides better targeting for online advertising/engagement

People may be posting images while they are on the hiking trails, but never specifically say where they are. However, the geo-based monitoring will identify their location at the park. The image below is a great example of this:

In the collage of results, you’ll have the screen name for the individual who posted (these were removed for the purpose of this blog post), as well as the date/time they were visiting and details on what part of the park they visited.

You can engage in a few different ways: once you have the collage of results, you can engage with them directly from your social site, either publicly or via private message, or receive the list of screen names to import into a Twitter ad campaign, for example. Twitter offers a tailored audience feature, which allows you to segment a group of Twitter users based on your geo-based research, and have the ability to communicate and/or advertise directly to them.

This is becoming an inexpensive, efficient way for businesses to refine their advertising efforts. It’s especially useful for organizations where it may be difficult to identify visitors and groups via traditional means. You can learn more about this service on our website.

Best Practices For New Hires, Employees, & Former Employees

Social media adds a whole new layer to the employment process, particularly from a Human Resources and Corporate standpoint. It’s no longer “just” social media – the online conversations provide a wealth of information that is easily collected and used to make many decisions, and employment issues are no different.

From the hiring process to dealing with former employees, there are many key points related to social media that companies need to consider.

1. Pre-employment/hiring process: it’s no secret (or surprise) that Human Resources departments are turning to social media to learn more about candidates. This information is another layer that helps them make good decisions during the hiring process. More than a Google search, social media research can dig deep to find out more about a candidate through what he/she posts online. Here are some tips to make sure this is an effective process that keeps you safe legally:

Develop a written policy that explains how social media content is used in the hiring process. State what can and cannot be collected to be used to make a hiring decision. Aspects like religious beliefs and marital status, for example, cannot be used in the decision making process. Make sure the policy is clear and detailed so there is little room for potential candidates being able to sue on the basis of discrimination.

Use a third party to conduct the search: the hiring manager ideally should not be the one conducting the social media scan; this alleviates any potential or perceived bias. Using another individual to conduct the searches will provide a layer of protection, as they only provide relevant information that can be used in the decision making process to the hiring manager. This protects the hiring manager in that if he/she doesn’t ever see the other social content, they could not have used it. For this reason, many companies chooses to outsource the social media monitoring process, as these firms use sophisticated programs and are aware of HR laws, so you will only be provided with the most relevant, legally allowed information.

2. Current employees: your employees are a representation of your company. This is another area where monitoring social conversations can be important – do you have employees bad mouthing the company, or sharing proprietary information? It’s relatively easy to find out, and continual monitoring programs will help with this process. Here are some tips to make this an efficient, effective process:

Have a solid social media policy in place: employee handbooks should reference the company’s social media policies and expectations. Similar to signing consent for release of information and the ability for phone conversations to be recorded for quality assurance, employees should be required to sign a similar document stating that they reviewed the social media policy, understand it, and will adhere to it as outlined in the employee handbook.

Make clear the policy on different social aspects, such as employees connecting socially online with their supervisors, for example. This is the new workplace dating, and while social connections are simply connections and do not signal a deeper relationship in most cases, this is something that needs to be considered. In a similar vein, accounts like LinkedIn need special consideration – if an employee builds contacts during employment, what specifications are in place for post employment? Are those contacts “fair game” for former employees to contact at their new job? Does it depend on the contact? Make sure it is spelled out in your policy.

For further protection, some companies will require employees to post a disclaimer on their personal social content. Something along the lines of: “the content posted is my personal opinion and does not represent the opinion of XYZ Corporation.” Of course, this is something that would be more relevant for larger corporations and/or senior members of the company, but something to consider.

3. Post- employment: while former employees are on their own and no longer represent your company, social media monitoring can be useful to ensure in this area as well. Here are some tips on using social media monitoring for former employers:

Continue to monitor a former employee when non-compete/non-disclosure/non-solicitation factors come into play: this is one area where social media is extremely useful. Similar to insurance companies finding content posted by those fighting for workman’s comp that negates their claim, social media monitoring can help identify breaches.

Monitoring adherence to social media policy: hopefully your company’s social media policy outlines what happens when an employee leaves with regard to online content, connections, etc. Ensuring that what is considered “company property” is not being used by former employees can be tough, but again social media monitoring can help with this.

Social media has really impacted the employer/employee relationship, and, while the above sounds daunting and too much to monitor, the good news is that there are social media companies who can handle this for you. They have the time, expertise, and software platforms available to make this a painless process. Our company has worked in the social media landscape since 2007, and it’s been riveting to see the evolution of how social content is used, particularly from an employment standpoint.

Bankruptcy Courts See Social Media Accounts as Property

Small to mid-size business owners put their heart and soul into their companies, often times using social media to promote and talk about their business. What happens when an owner sells the business, or worse, goes bankrupt? What happens to the social media accounts?

Very recently, a gentleman found out. He owned a gun shop and recently filed bankruptcy. He was ordered to hand over the passwords to his social media accounts to the new owners, which he refused to do and spent some time in jail while this played out in court. In the end, he was forced to hand over the information, as the court determined that social media accounts are considered company property.

While this is a ground breaking decision, it is especially relevant for small to mid-size business owners, as their life is their business, and sometimes personal accounts become business accounts unintentionally. What did it in this particular case was the fact that the gentleman’s Facebook account not only shared his personal views, but promote the business. From a recent article on the subject:

“But Bohm ruled in April that the gun store’s social media accounts were not personal but used to boost sales, citing a tweet in which Alcede told his followers he was at a gun trade show as an example of something that would attract customers because it showed him as a “connected insider in the gun-buying community.”

What is the lesson to be learned? If you’re a business owner, it’s wise to create separate social accounts that are strictly for business purposes – promoting the business, engaging with customers, etc. – while keeping your personal accounts free of similar content to make sure there is a clear differentiation between the two types of accounts. Now is a good time to review your social accounts to make sure they fall in line with what constitutes a business page vs a personal account, and if needed, create separate accounts for your business. This is time well spent and can save you in the long run.