Say What! Social Media's Impact on the Employment Relationship
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Say What! Social Media's Impact on the Employment Relationship

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With Facebook, Twitter, LinkedIn, and other social media networks, the rules of employee communications and employer-employee relationships have changed and continue to evolve. Join Jim Hendricks as ...

With Facebook, Twitter, LinkedIn, and other social media networks, the rules of employee communications and employer-employee relationships have changed and continue to evolve. Join Jim Hendricks as he discuss the impact of social media on union organizing, corporate campaigns, and the employment relationship.

Learn about the NLRB's increased regulatory efforts in the new social media world. Discover what employee activity on social media networks you can and cannot control and how to establish an effective and compliant social media policy.

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Say What! Social Media's Impact on the Employment Relationship Say What! Social Media's Impact on the Employment Relationship Presentation Transcript

  • – KPA CONFIDENTIAL – Say What! Social Media's Impact on the Employment Relationship
  • Presenter Matthew Gilley Partner, Ford & Harrison 864-699-1143 mgilley@fordharrison.com
  • Questions • If you have questions during the presentation, please submit them using the “Questions” feature • Questions will be answered at the end of the webinar
  • TOPICS I. The Lay of the Land II. Protected Concerted Activity III. Social Media IV. NLRB vs Boeing V. What should you do?
  • 0 5 10 15 20 25 30 35 1954 1975 1985 1995 2003 2005 2007 U.S. Union Membership (as % of private sector workforce)
  • 3052 2716 2817 316032293104 3020 25992723 2333 2361 2117 16601519 1579 1321 1,666 0 500 1000 1500 2000 2500 3000 3500 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 NLRB Elections
  • Chairperson Wilma Liebman (D) – term exp. 8/27/11 Member Craig Becker (recess) (D) – term exp. 12/31/11 Member Mark Pearce (D) – term exp. Aug. 2013 Member Brian Hayes (R) – term exp. Dec. 2012 (Terrence Flynn (R) – Nomination pending) THE BOARDTHE BOARD
  • The General Counsel is “independent” from the Board and is responsible for the investigation and prosecution of unfair labor practice cases and generally oversees the NLRB’s regional field offices. THE GCTHE GC Acting General Counsel Lafe Solomon (D)
  • The Acting GC is aggressively expanding his office’s authority. NLRB regional offices are required to submit the following cases to his Division of Advice: • Remedies in organizing campaigns (“nip-in-the-bud”) • First-contract bargaining cases • Neutrality/Dana • Supervisory status • Social media • Access rights of contractor employees • E-mail access • The “Rat” • Deferral to arbitration • Partial lockouts • Information requests based on table talk • Backpay for undocumented workers
  • PROTECTED CONCERTED ACTIVITYPROTECTED CONCERTED ACTIVITY Employees can engage in “…other concerted activities for the purpose of collective bargaining or other mutual aid or protection…” - National Labor Relations Act §7 We want a raise! It’s hot. We need a fan in here! We don’t want to wear these uniforms! I want better benefits for me and my coworkers! *** A trap for the unwary nonunion employer ****** A trap for the unwary nonunion employer ***
  • PROTECTED CONCERTED ACTIVITY:PROTECTED CONCERTED ACTIVITY: Has the NLRB gone too far?Has the NLRB gone too far? ““If an employer acts to prevent concerted activity – to “nip it in theIf an employer acts to prevent concerted activity – to “nip it in the bud” – that action interferes with and restrains the exercise ofbud” – that action interferes with and restrains the exercise of Section 7 rights and is unlawful without more.”Section 7 rights and is unlawful without more.” …….. ““What is critical … is not what the employee did, but rather theWhat is critical … is not what the employee did, but rather the employer’semployer’s intentintent to suppress protected concerted activity.”to suppress protected concerted activity.” Parexel Intl., LLC, 356 NLRB No. 82 (2011) *** Parexel introduces a new “preemptive strike” theory ***
  • PROTECTED CONCERTED ACTIVITYPROTECTED CONCERTED ACTIVITY && SOCIAL MEDIASOCIAL MEDIA NLRB Complaint: ““On or about October 9, 2010, Respondent’s employee, Mariana Cole-On or about October 9, 2010, Respondent’s employee, Mariana Cole- Rivera, engaged in concerted activities with other employees, includingRivera, engaged in concerted activities with other employees, including Carlos Ortiz, Ludimar Rodriguez, Damicela Rodriguez and YaritzaCarlos Ortiz, Ludimar Rodriguez, Damicela Rodriguez and Yaritza Campos, by concertedly complaining on her Facebook page regarding theCampos, by concertedly complaining on her Facebook page regarding the working conditions of Respondent’s employees.”working conditions of Respondent’s employees.” Hispanics United of Buffalo, Inc., Case No. 3-CA-27872 (filed May 9, 2011)
  • PROTECTED CONCERTED ACTIVITYPROTECTED CONCERTED ACTIVITY && SOCIAL MEDIASOCIAL MEDIA Dismissal of unfair labor practice charge: ““In this case, even if the Employer implemented an unlawfulIn this case, even if the Employer implemented an unlawful [social media policy], the Charging Party was terminated for[social media policy], the Charging Party was terminated for posting inappropriate and unprofessional tweets, after havingposting inappropriate and unprofessional tweets, after having been warned not to do so, i.e., for engaging in misconduct. Thebeen warned not to do so, i.e., for engaging in misconduct. The Charging Party’s conduct was not protected and concerted....”Charging Party’s conduct was not protected and concerted....” Lee Enterprises, Inc., Case No. 28-CA-23267 NLRB Division of Advice (April 21, 2011)
  • Does Your Social Media PolicyDoes Your Social Media Policy Comply With NLRAComply With NLRA § 7?§ 7? Beware prohibiting discussions of wages and working conditions, even outside the workplace. Beware prohibiting social media access during nonworking time. Consider a disclaimer regarding Section 7 rights.   
  • NLRB vs THE BOEING COMPANY The Complaint alleges that Boeing decided to “transfer” its second 787 Dreamliner production line to its nonunion site in South Carolina …”because the Unit employees assisted and/or supported the Union by, inter alia, engaging in the protected, concerted activity of lawful strikes and to discourage these and/or other employees from engaging in these or other union and/or protected, concerted activities.” The Boeing Company, Case No. 19-CA-32431 (filed April 20, 2011) The NLRB GC wants Boeing to move the 787 line back to Washington.
  • Why is NLRB vsWhy is NLRB vs Boeing important?Boeing important? The NLRB wants to equate business decisions made to avoid work stoppages with business decisions made because of anti-union animus. The NLRB wants employers to think twice before putting new work in a nonunion location instead of a union location. Despite claiming he is compelled to act, Acting GC Solomon had complete discretion over whether to file this Complaint. EFCA may be dead, but Boeing reminds us that organized labor has the NLRB’s ear.    
  • What Can You Do? 1) Stay informed 2) Policies should keep pace with law and technology 3) Educate your organization – Training! 4) Ask questions
  • Questions and Answers 18– KPA CONFIDENTIAL – QUESTIONS?
  • Contact Information 19– KPA CONFIDENTIAL – The recorded webinar will be emailed to you today www.kpaonline.com Becky Ross bross@kpaonline.com 866-356-1735