Ford Says Consumer Privacy Is Impractical

In a Yahoo! exclusive article published today, it was reported that Ford has initiated a lawsuit against 13 individual eBay sellers who they accuse of selling fake or counterfeit Ford parts. I’m not arguing the merits of Ford’s lawsuit as it is certainly within their rights to protect their trademarks and copyrights as well as take steps to protect dealer’s profits in the part business but rather to question the bigger issue encompassed by this: an individual’s right to privacy.

The subpoenas for the  lawsuits were granted by the court for Ford to obtain the seller’s identities and information. What is unusual about this is not that they requested it, but what they asked for after that request was granted.

As reported in the article, most ISPs and websites have policies in place that notify users when the company gives out their information for any reason except for that involving criminal activity and which is requested by law enforcement agencies.

In this case, Ford not only requested the user’s information but also asked for their bank account information (which was denied) then went a step further and asked for the court to prohibit eBay and Paypal (an eBay company) from notifying the targeted users that their information was requested and given out.

This move flies in the face of all privacy issues. With the public outcry against the recent legislation effectively designed to skirt privacy issues accompanied by Ford’s strong pro-consumer brand and social media presence, you’d think they would want to steer clear of any controversy in regards to consumer privacy.

“Much of the debate in recent months over online privacy has been spurred by bills in Congress, such as the Stop Online Piracy Act and a new bill, the Cyber Intelligence Sharing and Protection Act, which passed the U.S. House in April. CISPA would let companies and law enforcement agencies broadly share users’ personal information to fight potential threats — including accusations of copyright violations and counterfeit goods — without penalty, trumping any company policy.” writes Justin Hyde in the Yahoo! article.

The reason reported by Ford for this request was:

Ford respectfully suggests this procedure is impractical and would serve to undermine the rationale for the subpoenas. The procedure would impose a substantial burden on [eBay and PayPal] to prepare, serve and enforce subpoenas and would serve to “tip-off” or warn the Doe defendants of Ford’s investigation. Under the procedure as written, the Does would have notice that Ford was seeking their identities and thus ample time to destroy evidence, the counterfeit and infringing goods, and flee to avoid service all before Ford would be entitled to receive their true identities.”

I understand why they asked the court to do this but just because it’s a good reason doesn’t mean it should outweigh the right to privacy that all citizens enjoy. This is a civil matter, not a criminal one.

Now that one court has issued what I feel is an invasion of privacy, what’s to stop other judges from following suit. I can think of plenty of GOOD reasons for a judge to do this but that doesn’t mean they SHOULD. Where does an ISP or website draw a “line in the sand”? Despite Facebook’s own internal privacy issues, they have, and are still, fighting other companies from requiring or being allowed to access their user’s information and accounts including employer’s requesting pre-employment access, schools requiring students to reveal their Facebook walls to administrators and more.

Being an eBay user for over 14 years and a Paypal user for about 12, I would hope that they would challenge and fight for their user’s right to privacy. It’ll be interesting to see how this plays out and whether any of the companies involved will take a stand for their users.

While Ford may feel that their lawsuit against 13 people succeeding is more important than our rights to privacy, I just find that.. well.. impractical.

Buy Here ‘Cause They Suck

Most dealerships and businesses in general know that it’s bad practice to bad-mouth your competition. That being said, I know of and have heard plenty of salespeople and managers using their online reviews to help close a deal by comparing them to their competitors online reviews. This practice is similar if not exactly the same. You are leveraging negative comments about your competitor left by other people (who you are representing as real – we all know fake reviews exist) to your positive reviews (you aren’t really showing people any negative reviews about your dealership, are you?) in an effort to “sell” yourself and your dealership. So, while this isn’t talking bad about your competitor directly, it is indirectly, and what you say can now get you in some deep water.

In a precendent setting ruling, an Alabama car dealership has been awarded $7.5 million dollars due to slanderous comments made during a close to consumers by both the salesperson and sales manager. Apparentley, the dealership’s competitor was owned by an Iranian-born but naturalized U.S. citizen. The sales manager told at least one couple while attempting to close a deal that the competitor was “helping fund insurgents there and is also laundering money for them.” The salesperson was also accused of telling the same couple that the dealer was ”funneling money back to his family and other terrorists…” and that he has a “brother over there and what you’re doing is helping kill my brother.” It is also reported that the competitor was frequently referred to as “Taliban Toyota”.

The jury awarded the Alabama dealer  $2.5 million in compensatory damages and $5 million in punitive damages after deliberating for 3 hours.

While this is certainly an extreme example, it bears watching where the “line” is. This had more to do with a leveraging of race, stereotypes and bigotry but there’s no telling what future lawsuits outcomes would be utilizing this ruling as precedent.

I find it astonishing that, it appears, the sales manager, at least, is still employed at the dealership based on the statement that neither of them were available for comment per a “dealership spokesman”.

I think there are now 7.5 million reasons to add prohibiting the “bad-mouthing of your competitor” to your employee handbook. 

NLRB determines dealership did not break laws in Facebook firing

In a follow up to my breaking news story about the BMW dealership in Chicago, according to the Chicago Tribune, the National Labor Relations Board has determined that while the employee’s Facebook posts concerning the quality of food and beverages offered to customers at the dealership during a sales event was protected activity, the dealership did not break laws by terminating the employee because he also posted pictures of the accident which took place at a neighboring dealership that belonged to the same company.

The NLRB determination reinforces that you need to be careful when determining disciplinary action when it relates to social media posts by employees as I outlined in a subsequent article. The posts about the sales event, being considered protected activity, means that had the employee not also posted the pictures of the accident (which was not protected activity), the dealership would have lost this decision and been held accountable for fines, back-pay and other disciplinary actions.

(Originally published October 17, 2011 on Dealer magazine)

What Does The Government Think About Your Social Media Policy?

Back in June, I broke news on a case that involved a BMW dealership firing a salesperson for posting critical comments about the dealership and pictures of an accident that occurred on a nearby dealership’s lot (that happened to be owned by the same people).

Due to the huge increase in social media use by the general population as a form of communication, The National Labor Relation Board is aggressively going after companies that terminate employees for issues in regards to social media use. Until now, there seemed to be no rhyme or reason to which cases they were supporting and which they weren’t. The information was there, but unless you were actively seeking these cases, chances are you wouldn’t find them.

In an effort to coordinate the prosecution of cases involving social media, Anne Purcell, Associate General Counsel for the National Labor Relations Board, wrote and released a 24 page report on August 18, 2011 summarizing cases involving social media and explaining why they have chosen to prosecute (or not) these cases. In doing so, they’ve given insight into what you can and can’t do as an employer including what they believe your social media policy should (or shouldn’t) say.

Keep in mind that this is a summary of the cases and issues that they’ve determined merit prosecution. While some of the cases have been settled, many of these cases have trials pending. In no way are these laws or precedents…yet. However, in knowing what they do and don’t consider valid complaints, it can help any employer construct a more solid social media policy that would, at the very least, withstand the scrutiny of the National Labor Relations Board. It also gives insight into what, if any, disciplinary action you can take against an employee in regards to social media use.

In summary, based on the collective summaries of the cases, here are some guidelines I’ve extrapolated from the report for your social media policies and disciplinary considerations:

They’re huge on protected concerted activity. Employees can discuss and criticize their employer, supervisors and co-workers as long as they don’t stand alone in their criticisms. Your employees can call you a “scumbag”, an “a-hole”, a “super mega puta” or whatever else as long as they have co-workers that share their opinion. They have the right to discuss working conditions and their employer anywhere, including via social media. The keyword here is that it must be a discussion. Personal gripes don’t count.

You can’t have overly-broad social media policies. Things you can’t include in your social media policies:

  1. Prohibit employees from making negative comments about the company, their supervisors or their co-workers.
  2. Posting pictures of themselves which depict the company in any way (ie. in uniform, on the job, etc.)
  3. Prohibit them from using inappropriate, offensive or rude language in regards to a coworker, the company, or a customer.
  4. Prohibit inappropriate discussions via blogs.
  5. Prohibit employees from discussing company business on their own time on their personal accounts.
  6. Prohibit employees from disclosing inappropriate or sensitive information about the company.
  7. Prohibit employees from posting pictures or comments involving the company or its employees that would be considered inappropriate.
  8. Prohibit employees from using the company name, address, or other company information on their personal profiles.
  9. Prohibit employees from using the company’s logo or photographs of the company’s store.

How many of these does your company have in its social media policy?

I bet quite a few. You’re probably thinking “Holy Cow” about now. Seems as if employees can do anything they want! That’s not true. What IS true is this: these company’s social media policies (when they had them) contained restrictions that were overly broad and encompassing. Employees have a right to bitch about their workplace, bosses and company, whether it’s aloud or via any type of social media, including Facebook, Twitter or blogging. It doesn’t matter whether you have an “At-Will Employment Agreement”.

So how do you restrict your employee’s social media use through policy without it being considered overly-broad? I mean, come on, you can’t account for EVERY possible situation in a written policy.

The answer is actually quite simple. Your policy is overly broad and/or unlawful if it does not contain verbiage that excludes protected concerted activity as defined by Sections 7 and 8 of the National Labor Relations Act. Simply putting a phrase similar to that into your social media policy should protect you in most instances (unless, of course, the activity IS protected).

In addition, when considering whether you can or can’t terminate an employee because of something they posted on social media, you need to ask yourself these questions:

  1. Is this comment posted relating to any form of work conditions?
  2. Is it a shared opinion and/or being discussed with fellow co-workers?

If the answer is yes, I would think twice before disciplining the employee. If the answer is no, you’re probably safe.

This has nothing to do with free speech. It has everything to do with creating policies that would INCLUDE protected concerted activities. To make it short (and provide an example of their reasoning), you can’t tell an employee they can’t post photos or use the company logo on social media without permission because that would include prohibiting the employees from posting photos of them on a picket line in front of your dealership. You can’t simply tell them they cannot talk about the company via social media because that would prohibit them from lawfully discussing working conditions with their co-workers.

Moral of the story: If you’re an employer, make sure your policy excludes protected activity. If you’re an employee, make sure your co-workers agree with you (and chime in).

Disclaimer: The author of this post is not an attorney and in no way should this be considered legal advice.

(Originally published on Dealer magazine)

Dealers In California May Be Forced To Change The Way Salespeople Are Paid

In a class action lawsuit filed on June 21, 2011 against AutoNation (Santa Clara Superior Court, entitled Lilly v. AutoNation, Case No. 1-11-CV-203569), attorneys are claiming that AutoNation is in violation of the California Labor Code by misclassifying commissioned sales reps as exempt from overtime and, in addition, issuing deduct vouchers post-sale for losses in commissionable gross due to repair or service costs incurred.

It’s standard practice in California to consider minimum wage as a “draw” against commissions. This hourly wage is only paid if the salesperson’s commissions for any pay period are less than commissions earned (ie. they would get the higher of the two amounts – commissions or hourly wages). Many dealers “settle up” at month end with the salespeople meaning the view the commissions/hourly wages on a monthly basis (versus a pay period). California labor law mandates that overtime be paid for any hours over 8 in a DAY, not by 40 hours in a week. (ie. If I worked 12 hours the whole week but all in one day, I would be due 4 hours overtime even though I only worked one day that week.)

We all know that salespeople work A LOT especially hungry ones. Many salespeople who aren’t making a ton of commissions will make sure they work a lot of hours to insure that they get a decent check in the first place. Of course a salesperson that is getting paid hourly too many times has a short lifespan within a dealership.

Now onto the deduct vouchers. Dealers in California pay commissions in one of two ways: upon approval, or upon funding. Most dealers pay upon approval. This is designed so that salespeople don’t have to wait forever to earn their paychecks and dealers don’t have to cough up minimum wage while the salesperson has unpaid commission vouchers pending funding. It’s also pretty common that grosses decrease post-sale for many reasons: a dealer has trouble with funding and/or has multiple approvals, spot-deliveries based solely upon credit, repairs and due bills completed post-sale, unforeseen bank fees, option contracts cashed in, back-end product cancellations, etc.

Typically, since vouchers are issued upon approval, those vouchers are issued based upon the gross at the time of delivery and/or approval and included in the salesperson’s check for the next pay period. If dealers cannot issue deduct vouchers for loss in gross, this will force dealers to restructure pay plans as something that was spot-delivered with a high front-end gross that gets cut back due to financing issues or any of the other reasons mentioned above, could go from a nice voucher for the salesperson to a mini. If the dealer continued to pay in the way that they are now, and could not issue deduct vouchers, they would risk losing money by issuing commission vouchers prematurely.

Then you have to consider that a sales manager would be forced to structure the deal differently taking into consideration potential cut-backs to take into account the future inability to issue a voucher. The only way to structure a new pay plan without risk to the dealer would be to issue the voucher upon funding which would open the dealer up to the possibility of having to pay the salesperson hourly wages (including overtime), while the salesperson had unissued commission vouchers pending funding. A salesperson who knew how to game the system and/or a passive F&I manager could further complicate things while awaiting stipulations from the customer.

In any case, dealers in California need to watch this pending litigation carefully as it could have a great impact on how they compensate their sales staff and, if the lawsuit is successful, would open up ALL dealers in California to future lawsuits for the same reason.

Right now, AutoNation is the only target, but your dealership could be next.

(Originally published July 22, 2011 on Dealer magazine)