Pursuant to the new federal Consumer Review Fairness Act of 2016, form contract provisions are void if the provision:

• prohibits or restricts the ability of an individual who is a party to the form contract to engage in a covered communication;
• imposes a penalty or fee against an individual who is a party to the form contract for engaging in a covered communication; or
• transfers or requires an individual who is a party to the form contract to transfer to any person any intellectual property rights in review or feedback content, with the exception of a non-exclusive license to use the content, that the
  individual may have in any otherwise lawful covered communication about such person or the goods or services provided by such person.

Under the new law a “covered communication” is “a written, oral, or pictorial review, performance assessment of, or other similar analysis of, including by electronic means, the goods, services, or conduct of a person by an individual who is party to a form contract with respect to which such person is also a party”. The statute defines a “form contract” as a contract with standardized terms (i) used by a person in the course of selling or leasing the person’s goods or services; and (ii) imposed on an individual without a meaningful opportunity for such individual to negotiate the standardized terms. It does not include an employer/employee or independent contractor contract.

There are many exceptions to the new statute, as it is not meant to affect “any civil cause of action for defamation, libel, or slander, or any similar cause of action”. The statute may be enforced by the Federal Trade Commission or a State Attorney General in Federal Court.

Before you attempt to limit the right of any person to post a review, contact your attorney to ensure you do not run afoul of this new law.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.

Maybe, maybe not. At the least, caution is called for.

Much has been made of people’s willingness to disclose all sorts of personal information about themselves in their social media profiles. It’s nothing new. Who hasn’t been trapped in a conversation with another person who has no qualms about telling you highly personal things you don’t really want to hear?

What is new is the lasting effect of over disclosure in social media profiles. The information that a person reveals online in the here-and-now via a post to a Facebook page can be used against him or her later. If a post or a photo hits the Internet, it’s fair game. A racist rant or a racy photo can be captured, saved and sent to anybody, anywhere.

It can also cause an employer to discriminate against that person, according to research from Carnegie Mellon University.

Under state law, California employers are prohibited from requiring or requesting applicants or employees to disclose information regarding their personal social media accounts.

Employers may not require or ask an applicant to:

• Disclose a username or password for the purpose of accessing the applicant’s personal social media
• Access personal social media in the presence of the employer
• Divulge any personal social media

Employers should also realize the potential problems they can create for themselves by searching for information about an applicant via the person’s social media accounts. Making employment-related decisions on the basis of an applicant belonging to a protected class, for example, pregnancy or religious affiliation, is prohibited by law and can result in expensive discrimination lawsuits.

If an applicant does file a lawsuit, his/her attorney will likely require the employer to hand over computer records in an effort to show that the employer investigated the applicant online by visiting the applicant’s Facebook page.

What should you do to minimize the chances you’ll walk into a bear trap?

• Put policies in place that forbid managers from discriminating against protected classes when making any employment decision
• Train managers to consistently follow those policies
• Educate managers about the perils of snooping online for an applicant’s online or social media profile

If you decide to include online searches as part of your screening process, delegate responsibility for those searches to a manager who is not involved in the actual hiring process.

The ancient “An ounce of prevention is worth a pound of cure” once again can be shown to be a highly useful and pragmatic guideline to make your business affairs more trouble-feel.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.