Friday, July 31, 2009

Managing Your Reputation Online - Part Three: Monitoring What is Out There

In Part One of this series, I introduced the risks. In Part Two, I outlined a checklist of preventive measures. Now, let’s look at some practical ways to monitor your business reputation in the blogosphere and other virtual spaces.

Keep your eyes open

Reputation (and brand) management is ultimately a legal issue, so some general legal principles seem appropriate here. One that American law students learn early in law school is that “equity favors the vigilant, not those who sleep on their rights.” Another legal concept is the “Limitations Period” (in Louisiana, “Prescription Period”) codified in statutes.

Where the statutes of limitation are specific laws enacted in the various states and by Congress and give set time limits to file a lawsuit or criminal charge after a violation of some other statute, principles of equity are typically less rigid and applied in the spirit of reasonableness. Both have the goal and effect of placing a time limit on when you can take legal action.

Some of the time periods begin when an action occurs. Others only when the injured party “knew or should have known” about it. It is the second part of that you should worry about. If your name has been misappropriated or your protected property has been stolen, you will have to show that you did not turn a blind eye or blissfully live without any of the reasonable efforts a prudent businessperson would have undertaken to protect his or her own valuable property.

Set up monitoring tools

What should you do to monitor yourself, then? With each medium, there are useful tools and ways to monitor for potential problems. These are a few of the better ones available today:

1. Search Engine Alerts. In today’s information age, it is not considered vain to set a Google Alert or Yahoo Alert to “listen” for your own name or other protected words or phrases. They are easy to set up and manage and then work tirelessly to continuously monitor for your selected terms among pages that these search engines index.

2. Social Media Tag Searches. Social media is raging into our lives. Who does not know anyone with a FaceBook, Twitter, MySpace or similar account? That means there is a lot of “chatter” out there, some of it not so pretty. You cannot ignore the SM world, even if you are not a participant at this point. Use free tools like the web-based TagBulb or downloadable TagFetch to watch for key words that people use to “tag” their comments.

3. Twitter. Twitter searching has become a world of its own. You already get the automatic “@username” feature in your Twitter home page that keeps up with every Tweet that includes your username. To broaden that monitoring, however, you need a tool. There are countless tools available now. If you use a third-party application to manage your Twitterings, look for features built in that let you filter and search. Otherwise, try TwitterSearch (same company, different web page) or TweetBeep tools.

4. Newsfeeds. This is getting into higher levels of technicality, but the tools are no more difficult to use than some of the others mentioned above. An RSS feed reader is simply another monitoring device that watches the “stream” of information flowing through the Internet. RSS (“really simple syndication”) is how many web sites these days send their content out when it is updated. It is very common for news sites, so you cannot afford to overlook it. Unless you have an aggregator like Gregarius, Bloglines or one of the many other RSS Feed Aggregators out there, you would have to check each individual RSS feed.

5. Video and other media sites. YouTube allows people to “broadcast yourself” and Flickr makes every photographer world-renowned (at least for a few seconds after posting). How do you sift through the noise? In addition to search engine alerts, consider something like, a free service that specifically focuses on YouTube.
(Of course, each of the strategies above can also be used for monitoring trends in your industry or tracking competitors, but that is outside the scope of this series.)

Finally, during my research for this post, I found other useful posts on this topic that you might find helpful: A slideshow, “Why you should monitor social media” posted this week by Connie Bensen of Alterian; a good video essay on how some businesses use Twitter to monitor their own names, and a blog post on how to monitor your name on Twitter.

In a later post, I will focus on what action to take should you find a problem. Until then, get those alerts set up!

Monday, July 27, 2009

You know about the FMLA, but what about the SFMLA or MFLE?

Changes to the FMLA

By now most know that the Family and Medical Leave Act of 1993 (29 U.S.C. 2654) (FMLA) requires “covered employers” to give “eligible employees” up to 12 weeks of unpaid leave per year for their own or close family member’s medical care. Yet a number of organizations I have worked with are unaware of the changes in 2008 and 2009 to the statute and regulations. [1]

Even though you may not have employees who have been called up to active duty, do not assume that the so-called "Service-member's Family and Medical Leave Act," or SFMLA, is irrelevant to your business. There were two sets of changes to the FMLA in 2008 designed to benefit the men and women who have actively served in our armed forces and their families: one added added to the FMLA provisions to make them more clearly applicable to deployment-related situations; the other actually added a new 26-week leave benefit in lieu of the FMLA. Together, they are formally known as the "Military Family Leave Entitlements."

Qualifying Exigency Leave

The FMLA has always had a short list of qualifying events that enable an "eligible employee" to use unpaid FMLA time off from a "covered employer" without losing his or her job permanently. To that list, Congress added "any qualifying exigency arising out of the active military service of the spouse, child or parent of the employee." At first glance, this seems to be a huge expansion of FMLA definitions. According to the United States Department of Labor, "qualifying exigencies" include anything the employer and employee agree is a "qualifying exigency," but also:

° Issues arising from a covered military member’s short notice deployment (i.e., deployment on seven or less days of notice) for a period of seven days from the date of notification

° Military events and related activities, such as official ceremonies, programs, or events sponsored by the military or family support or assistance programs and informational briefings sponsored or promoted by the military, military service organizations, or the American Red Cross that are related to the active duty or or call to active duty status of a covered military member

° Certain childcare and related activities arising from the active duty or call to active duty status of a covered military member, such as arranging for alternative childcare, providing childcare on a non-routine, urgent, immediate need basis, enrolling or transferring a child in a new school or day care facility, and attending certain meetings at a school or a day care facility if they are necessary due to circumstances arising from the active duty or call to active duty of the covered military member

° Making or updating financial and legal arrangements to address a covered military member’s absence

° Attending counseling provided by someone other than a health care provider for oneself, the covered military member, or the child of the covered military member, the need for which arises from the active duty or call to active duty status of the covered military member

° Taking up to five days of leave to spend time with a covered military member who is on short-term temporary, rest and recuperation leave during deployment

° Attending to certain post-deployment activities, including attending arrival ceremonies, reintegration briefings and events, and other official ceremonies or programs sponsored by the military for a period of 90 days following the termination of the covered military member’s active duty status, and addressing issues arising from the death of a covered military member
(emphasis in DOL original)

These extra benefits do not apply to members of the regular armed forces. They were expressly enacted by Congress to help the members of National Guard and Reserves who are called to active duty from their regular lives and should be seen and applied in that light. Qualifying Exigency Leave is merely a new basis for use of the 12-weeks of FMLA within a rolling 12-month period.

Military Caregiver Leave

The new leave benefit is a 26-week unpaid leave option for "eligible employees" working for "covered employers" who need the time either for themselves or their spouse, child, parent or next of kin. The 26-weeks must fit within a rolling 12-month window, just like the 12-week FMLA leave benefit. Eligible employees cannot add the two together: the FMLA's 12 weeks and the Military Caregive Leave can total no more than 26 weeks and only care for a covered servicemember can extend beyond the 12 weeks provided by FMLA.

Unlike Qualifying Exigency Leave, however, Military Caregiver Leave applies to both "regular" Armed Forces servicemembers and "reserves" called up from National Guard or Reserves. The serious injury or illness here must be incurred in the line of duty AND make the covered servicemember unable to perform the duties of his or her office, grade, rank or rating.

The Department of Labor maintains a good set of FMLA informational materials on its website as part of the Compliance Assistance section. Those interested in learning more can find a pdf Fact Sheet on the Military Family Leave Entitlements here.
[1] I will address the technical definitions of "covered employer" and "eligible employee" under the FMLA generally in a later post.

Monday, July 13, 2009

What You Should Know When Selecting Software for Your Organization - Part One

Software is expensive and changing your office work flow to adapt to any new system is time-consuming and stressful. Your organization expects you to make the best decision for a software solution that they can master easily and keep using for a long time without major changes.

It still amazes me to see software designed or configured to place extra work on the humans for the computer’s convenience. When shopping for software, here are some tips to help you assess not only viability, but usability.

1. Decide what you need and want, THEN shop.
2. Stay open to changing your requirements after you shop.
3. Let the actual users have a voice.
4. Keep the future open-ended.
5. Make a long-term decision.

Step one: Assess, then Search. Too many people do the reverse and window shop before they really have a solid sense of the features they need. Can you get more bangs for your bucks with a solution that addresses the needs of multiple units? Can you eliminate multiple software and information management systems with one purchase?

With the right people on your committee (even if it is only you), the process can move best by starting with the needs assessment. If you show the kids the candy store first, you may never get your shopping done. Better, ask product-agnostic questions of the business process improvement experts in each affected unit.[1] Hopefully, they already know the processes they need to improve or would like to, but for the archaic software they have to use.

>>>>What do you need to be able to perform your tasks more effectively?
>>>>What steps in your daily work could you eliminate with better technology tools?
>>>>Are there other important objectives you could address if freed from inefficient tasks?

After each of these, use the “What’s stopping you?” analysis to drill down to the functions relevant to your software search.

Q: What do you need to be able to perform your tasks more effectively?
A: Forms we can fill out onscreen, rather than paper that must be scanned into the database
>>>>Q: What’s stopping you from having these forms?
>>>>A: We need the ability to modify screens in our software as our needs change.

Now you have a feature that is real. One that addresses a business need without the emotion from those who fear change or hate your present software. Continue to build this list, even if some of the features are contradictory or extremely unlikely to be found in a commercial, off-the-shelf system (COTS). You are in the planning stage, so it is OK to start big.

In subsequent posts, I will explore some of the self-created risks many software buyers face during this important decision process as well as how to work through them.

[1] If you have not already gone through the BPI phase, review my earlier posts that outline a generic BPI plan and consider hiring a qualified expert to guide you.

Wednesday, July 8, 2009

Can You Safely Pay “Fees” to Representatives of Foreign Countries to Help Secure Business?

"Suddenly, without warning..."

Several years ago, a colleague of mine was a passenger in a car stopped at an eastern EU country’s border with another EU member country. My friend expected no trouble, but after the passports were stamped, the border guard began to give the driver an increasing amount of difficulty and walked him into the shadows away from where they were parked.

A short moment later, the driver returned to the vehicle and they drove off. After a mile or so, my colleague asked about the incident and the driver confessed that he had paid a small bribe to get them through. It turns out that the vehicle he was using to show my friend the region that weekend belonged to his father. The guard suspected as much and threatened to report some bogus charge to the revenue inspectors who might have conducted the equivalent of an extreme IRS business audit (only without the taxpayer rights we have here). To avoid the risk, the driver paid the equivalent of $40 USD and the guard allowed them on their way. And it had been his own countryman! He was returning to his own country, not entering another! Was this a bribe? You bet. Did it violate the FCPA? Let's take a look.

The anti-bribery portions of what is known as the Foreign Corrupt Practices Act (FCPA) were written to address some of the ways American businesses were participating in corruption practiced in other countries.[1] As businesses expanded into the global marketplace, they ran head-first into “traditions” and “customs” that are illegal in the United States[2].

Senators William Proxmire and Harrison Williams introduced the bill with strong support from others in both chambers and lofty goals in the wake of Watergate. In reality, corruption is not unique to developing countries or those on other continents. The FCPA is also not entirely unique. However, U.S. and European Union countries appear to be the most stringent in holding domestic organizations liable for actions by their foreign employees, agents and subsidiary organizations.

Elements of an FCPA Violation
The FCPA applies to all companies who are subject to the jurisdiction of the Securities & Exchange Commission because they “issue” publicly-traded securities, as well as all “domestic concerns” (any individual who is a citizen, national, or resident of the United States, or any corporation, partnership, association, joint-stock company, business trust, unincorporated organization, or sole proprietorship which has its principal place of business in the United States, or which is organized under the laws of a State of the United States, or a territory, possession, or commonwealth of the United States). That pretty much covers the options.

Assuming you or your organization is within one of those definitions, it is time to examine the elements of a violation and some tips for staying out of trouble. There are four elements of an FCPA charge (15 U.S.C. §78dd-1(a)):
  • corrupt intent

  • connected with a "payment"

  • to a prohibited recipient

  • for a qualified business purpose.

Corrupt Intent. The issue of intent is generally key in criminal statutes and the FCPA is no exception. Simply put, was the payment intended to influence a foreign official to act illegally, or intentionally not act when legally required to do so, or induce such official to improperly use his or her influence to accomplish indirectly an act or omission that would be illegal if done directly.

Payment. Payment can be the obvious (cash, property, etc.) as well as merely the promise to give something of value (reciprocal official misconduct, e.g.). It is a defense to prosecution if the defendant can prove that the payment is legal in the official’s country. Likewise, if the “payment” is travel expenses for a lawful trade excursion to promote or demonstrate the company’s products or services—or if “payment” is directly related to the legitimate performance of a lawful agreement with the foreign agency or government—the defendant can avoid penalties.

Prohibited Recipient. The U.S. Department of Justice has this comment on whether a recipient is a “foreign official:”

The prohibition extends only to corrupt payments to a foreign official, a foreign political party or party official, or any candidate for foreign political office. A "foreign official" means any officer or employee of a foreign government, a public international organization, or any department or agency thereof, or any person acting in an official capacity. You should consider utilizing the Department of Justice's Foreign Corrupt Practices Act Opinion Procedure for particular questions as to the definition of a "foreign official," such as whether a member of a royal family, a member of a legislative body, or an official of a state-owned business enterprise would be considered a "foreign official."[3]

Business Purpose. Finally, the corruptly intended payment to the foreign official must be for the purpose of obtaining or keeping business—even if from someone other than the foreign government. The FCPA’s primary purpose, after all, was to address the wide-spread practices by major companies of paying bribes to gain an unfair advantage over smaller rivals or Uncle Sam himself (which begs the question as to whether the issue would have garnered Congressional attention if all companies of all sizes could equally have afforded to “pay to play”).

Analysis of the Bribe
The driver in our story definitely made a payment to a government official. The payment was illegal under his country's laws, and made to influence the official to act or fail to act. We have two elements and have knocked out one affirmative defense.

But that is as far across the FCPA line as this story goes. There is a strong argument that the border guard was only dissuaded from his own illegal or improper act, but we do not know enough about that country's laws to be sure. On the other hand, the key element missing from the story is the lack of a business purpose by my colleague. Even if the payment never touched my friend's hands, had this payment been paid with the intent to obtain or keep business, then without any warning or opportunity for the American parent company to act to prevent the violation, an FCPA violation might have occurred. Without any connection to gaining or keeping business, then, my friend appears safe this time.

Compliance Begins at Home
No doubt, the FCPA crossed my colleague's mind when the driver confessed miles down the road to paying a bribe to a border guard. Had my friend been better versed on the FCPA, he might have gotten more rest that night. Here are some practical steps you can take now to sleep better yourself.

Policy. Begin with an understanding of the law and a thorough anti-corruption policy review in your U.S.-based company and all of its subsidiaries and members. If you do not already have a clear, blatant policy that prohibits all influence compensation and all efforts to directly or indirectly improperly influence government officials everywhere[4], draft one now and publish it to all staff. You must avoid any appearance of impliedly condoning that which you have not strongly discouraged.

Training. Follow that with training to all staff on why you have the policy, what actions are prohibited, the potential penalties to them individually and the company and how to report anything they feel may violate the FCPA. Keep records of the dates and attendees at each such training and be prepared to show them to auditors and potential investigators.

Safe Harbor. It is important to have a policy that encourages self-reporting and sincere efforts to comply or remediate violations. Consider a whistle-blower clause in your policy that provides reasonable protections for innocent staff who report FCPA violations. Beware the self-serving tattle-tale, however, who may want to benefit from an action he or she reports.

There are myriad scenarios that can arise when conducting business abroad or with representatives of foreign governments and businesses. This article is not intended to give legal advice or to take the place of an open, honest evaluation by a qualified attorney in your jurisdiction. The most that any post such as this can do is help you understand the questions you should ask your own legal counsel.

The risks are high: fines in the millions of U.S. Dollars and imprisonment for years for each violation. Not the kind of reward you want for your business or yourself.

[1] These sections are found at 15 U.S.C. §78dd-1 through §78dd-3.
[2] It is beyond the scope of this post to take on the relative moralities and legalities between corruption that has existed in the U.S. versus abroad.
[3] “Foreign Official” The USDOJ site has a valuable Fraud section with the text of statutes, analysis and the Attorney General guidance mandated by the FCPA.
[4] Public companies are under additional accounting and record-keeping rules designed to make assets traceable and records of asset dispositions auditable, but those are outside the scope of this post. And with ratification in 1998 of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, anti-bribery rules have risen to the level of international treaty. More on that in a subsequent post.