Our Common Law Highlighted by Frenchman's Case

In the news: former head of the IMF, Dominique Strauss-Kahn was arrested recently in New York for alleged sexual assault -- and subsequently resigned his post. The case has all the trappings of a summertime blockbuster. However, for the French, conduct of the case in American courts can be perplexing, regardless of individual's political opinions of Mr. Strauss-Kahn. As the New York Times explains:

While the American justice system has its origins in British common law and involves ordinary citizens at almost every level, the French judicial system is rooted in the Napoleonic Code and is largely conducted behind closed doors. Suspects are typically ushered into courthouses through discreet side entrances, out of view of the public.

State-appointed magistrates prosecute and pass judgment in most trials without the oversight of citizen jurors, who serve only in the most serious cases. In such cases, formal charges come — if they come — only after a lengthy inquest by an investigating judge, who collects evidence on behalf of both the prosecution and defense before determining if a trial is warranted.

And in further contrast to the American system, investigating magistrates are legally bound to secrecy during an inquest.

Because of this secrecy the French judiciary has more discrete control over the case, managing the investigation on an intimate level, and deciding only then whether a trial is merited. A jury is only provided in extreme cases, the author explains.

As such, the extreme publicity which pervades the US system is perplexing to the French, who criticize it as "theatrics" and alternately praise it as a system which "does not hesitate to apprehend even the most emblematic personalities with lightning speed" -- the same criticisms and praises which our system gets from the locals, too.

Employee Posts in Social Media May be Protected

Recent cases (Hispanics United of Buffalo (2011) and American Medical Response (2010)) brought before the NLRB involve case where employees posted complaints about working conditions on Facebook. In Hispanics United, the comments apparently started as a disparagement of a particular individual's work practices. Whereas in American Medical Response, the employee posted complaints about work conditions, combined with disparaging epithets about a manager (calling him a "dick" and a "scumbag"). In both cases, the employee was terminated.

In the American Medical complaint, company policy proscribed employees from, inter alia "making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors," in its "Blogging and Internet Posting Policy." This policy is similar to one upheld (against Union opposition to it based on the quoted portion) in an NLRB Opinion letter at Sears Holdings, 18-CA-19081 (2009):

[Employees may not use social media in, inter alia,] Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects.

However, the policies and cases were distinguishable on several grounds. The American Medical employee was denied union representation in the company's internal investigation and discipline, the employee apparently made a combination of the offensive remarks listed with possibly-legitimate remarks about the workplace,and the American Medical policy was less detailed and more restrictive in other details. Whereas, the Sears Holdings matter regarded only whether the policy was itself per se violative of the rights of employees to converse about work. (Another difference is that the opinion letter was produced under a Republican administration.)

In the end, American Medical settled and so no court has yet weighed the extent to which the NLRA protects employee's use of social media. Employers are understandably shy about letting these cases go to litigation. Build.com, for instance, settled a similar case before the NLRB in April of 2011. Additionally, the NLRB is considering requiring a poster, outlining the rights of workers to discuss their working conditions -- which would apparently apply even in a social media setting.

Look for my next article, which will be about the limits of Free Speech in the Employment Context.

Why it is sometimes OK to mock...

"Ridicule is the only weapon which can be used against unintelligible propositions. Ideas must be distinct before reason can act upon them" -our own Thomas Jefferson

Wage and Hour iPhone App

The U.S. Department of Labor today announced an iPhone app allowing employees to track their work hours (and the work hours of three of their friends) and determine the wages they are owed. Also available in Spanish. The app can track regular work hours, break time, meal time, and overtime.

It contains a glossary, contact information and materials about wage laws via links to the Wage and Hour Division's web site.Users can post comments, view summaries of hours worked, and email the data. Click to download.

Search Engine Optimization, Fact or Fallacy?

As discussed in a recent Skeptics with a K episode, in the obsession with becoming first in a Google search for important key words, it is easy to be duped by "experts" who claim they can improve your page ranking with so-called "Search Engine Optimization" or SEO. (Which, by the way, if it worked, would have had an SEO firm as the first non-paid result when I googled for it, but instead came up first with Wikipedia.) However, SEO is based on the premise that the web designers know something about how Google prepares its results.

In fact, Google is highly secretive about the black box of its search algorithms. As such, after a web-master gets hold of your website, even if your page ranking increases, you have no way to test whether the increase was due to the web-master or a change to Google's algorithm, or magic fairy dust. Without testable results, there is no way to determine if your money was well spent.

That's not to say that there are not best practices for designing a web page which Google can read and properly rank. Google itself publishes a webmaster guide on SEO.Chief among those best practices is generating a LOT of original and useful content -- at least part of the focus of Google's results.

One point the Mercyside Skeptics missed is that even if the webmaster of choice had an inside scoop on page ranking, you'd have to pay him extra not to redesign your competitor's site, thus negating any advantage you had. Personally, I think its best to focus on content, and less on page ranking.

Getting at Google

Self promotion is all important in business, and the Internet is today's Main Street. It may not always be clear why you need a shop there, but without one, a business person can seem backward. However, Google recently altered it search algorithm to improve results for users by prioritizing original content over republished material.

Google had this to say to NPR:

"The sites that do put a little bit more individual care and attention and work into the content of their site — whether it be a product description, or a blog post," says Matt Cutts, Google's lead engineer on the Panda update, "those are the ones that users tend to prefer a little bit more and appreciate."

The lesson is: in order to keep up with business, you also must keep up with your website. Attract new business though fresh, original content. Suddenly, everyone has to be a writer!