Social Media

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How should organizations respond to the changing culture of social media? This presentation will cover recent cases involving social media and the NLRB, and discuss the implications of those decisions. Find out what organizations can do to protect themselves from harmful and expensive litigation.

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Social Media

  1. 1. Employee Relations In the Age of Social Media
  2. 2. Introduction
  3. 3. Ha.
  4. 4. There is a constant balancing act between two conflicting priorities. Employee rights to engage inReasonable workplace policy “concerted activity” for their which maintains order and “mutual aid and protection.” helps avoid liability.
  5. 5. It is still unclear where social media fits into this balance. Employee rights to engage inReasonable workplace policy “concerted activity” for their which maintains order and “mutual aid and protection.” helps avoid liability.
  6. 6. And the courts have yet to produce a ruling that settles it. Employee rights to engage inReasonable workplace policy “concerted activity” for their which maintains order and “mutual aid and protection.” helps avoid liability.
  7. 7. When considering workplace privacy rights in the age of Facebook and Twitter,“we are not walking on paths of concrete…. John Quirke, Archer & Greiner SHRM Employment Law and Legislative Conference, 14 March 2011
  8. 8. When considering workplace privacy rights in the age of Facebook and Twitter,“we are not walking on paths of concrete…. We are walking on paths of shifting sand.” John Quirke, Archer & Greiner SHRM Employment Law and Legislative Conference, 14 March 2011
  9. 9. At the end of the day, hopefully the sand you stand on will be a little firmer.When considering workplace privacy rights in the age of Facebook and Twitter,“we are not walking on paths of concrete…. We are walking on paths of shifting sand.” John Quirke, Archer & Greiner SHRM Employment Law and Legislative Conference, 14 March 2011
  10. 10. This presentation will enable you to (1) recognize protected concerted activity and (2) craft a defensible internet policy to make sure you respond appropriately to it.When considering workplace privacy rights in the age of Facebook and Twitter,“we are not walking on paths of concrete…. We are walking on paths of shifting sand.” John Quirke, Archer & Greiner SHRM Employment Law and Legislative Conference, 14 March 2011
  11. 11. The NLRA
  12. 12. The NLRA i.e., a piece of legislation from 1935.
  13. 13. The NLRA That‟s when we got Social Security, too.
  14. 14. The NLRA And in case you‟re curious in what ways the world was different back then, a house cost $6,300, the average salary was $1,500, and gas was $.19/gallon.
  15. 15. The NLRA Just to name a few.
  16. 16. The NLRA And we all know what people from 1935 can be like.
  17. 17. Ha.
  18. 18. Section 7. [29 U.S.C. § 157] Right of Employees to Organize Employees shall have the right to… engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Section 8. [29 U.S.C. § 158] Unfair Labor Practices by Employer It shall be unfair labor practice for an employer tointerfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.
  19. 19. Section 7. [29 U.S.C. § 157] Right of Employees to Organize Employees shall have the right to… engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. The intent was to equalize bargaining power between the big, bad company and wittle-ittle employees. Section 8. [29 U.S.C. § 158] Unfair Labor Practices by Employer It shall be unfair labor practice for an employer tointerfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.
  20. 20. Section 7. [29 U.S.C. § 157] Right of Employees to Organize Employees shall have the right to… engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Concerted activity includes discussion of wage, hour, and working conditions. Section 8. [29 U.S.C. § 158] Unfair Labor Practices by Employer It shall be unfair labor practice for an employer tointerfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.
  21. 21. Section 7. [29 U.S.C. § 157] Right of Employees to Organize Employees shall have the right to… engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. For example, employees getting together and talking about their pay or benefits are protected. Section 8. [29 U.S.C. § 158] Unfair Labor Practices by Employer It shall be unfair labor practice for an employer tointerfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.
  22. 22. Section 7. [29 U.S.C. § 157] Right of Employees to Organize Employees shall have the right to… engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. You “chill” these rights… Section 8. [29 U.S.C. § 158] Unfair Labor Practices by Employer It shall be unfair labor practice for an employer tointerfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.
  23. 23. Section 7. [29 U.S.C. § 157] Right of Employees to Organize Employees shall have the right to… engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. …when you discourage (i.e. interfere with, restrain, coerce) employees from exercising them. Section 8. [29 U.S.C. § 158] Unfair Labor Practices by Employer It shall be unfair labor practice for an employer tointerfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.
  24. 24. Section 7. [29 U.S.C. § 157] Right of Employees to Organize Employees shall have the right to… engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Brrrr. Section 8. [29 U.S.C. § 158] Unfair Labor Practices by Employer It shall be unfair labor practice for an employer tointerfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.
  25. 25. Section 7. [29 U.S.C. § 157] Right of Employees to Organize Employees shall have the right to… engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. Yet how employees need to be “organized”, or joined, in their engagement is unclear as the influence of social media grows. Section 8. [29 U.S.C. § 158] Unfair Labor Practices by Employer It shall be unfair labor practice for an employer tointerfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.
  26. 26. Now, you may be thinking that employeescan say anything they want about their work and the people they work with.
  27. 27. I was thinking that.
  28. 28. Well, they can‟t. So, if you‟ve been waitingdecades to tell that %$@!#$ @#$%*& of a boss what you really think of him…
  29. 29. You‟re out of luck.
  30. 30. Congress shall make no law… abridging thefreedom of speech
  31. 31. The First Amendment prohibits Congress frominfringing on free speech. Congress shall make no law… abridging the freedom of speech
  32. 32. It doesn‟t say anything about employers. Congress shall make no law… abridging the freedom of speech
  33. 33. Technically, employers can prohibit employees from engaging in any speech during work time that is not work-related. Congress shall make no law… abridging thefreedom of speech
  34. 34. And technically, employees can be fired for “talkin‟ smack” about their bosses. Congress shall make no law… abridging thefreedom of speech
  35. 35. For example… Wal-Mart Stores, Inc. v. Smitherman (1999) An employee is discharged for making a profane and derogatorystatement about a district manager. She made this statement in front of two other employees while in the break room.
  36. 36. Wal-Mart Stores, Inc. v. Smitherman (1999) An employee is discharged for making a profane and derogatorystatement about a district manager. She made this statement in front of two other employees while in the break room. On the bright side, she can profane as much as she wants now.
  37. 37. Recent CasesInvolving Social Media
  38. 38. SPOILER
  39. 39. The case was settled.
  40. 40. Meaning that, in thegrand scheme of things…
  41. 41. …it‟s more of a“guideline” than a “rule”.
  42. 42. Advice.
  43. 43. Recommendation.
  44. 44. Counsel. Suggestion. Innuendo.
  45. 45. Just saying.
  46. 46. Employee requests union representation for an investigatory interview. Request is denied. Employee is upset, and makes vulgar comments on her Facebook page. Co-workers join in the online discussion in support of employee‟s disparaging comments about supervisor. Two months later, employee is terminated.Case Issue Ruling Result
  47. 47. Employee requests union representation for an investigatory interview. Request is denied. Employee is upset, and makes vulgar comments on her Facebook page. This brings in the “concerted” of “protected concerted activity”. Co-workers join in the online discussion in support of employee‟s disparaging comments about supervisor. Two months later, employee is terminated.Case Issue Ruling Result
  48. 48. Then comes the lawsuit. There were two other issues in addition to the termination, but the termination is the one we‟re concerned with.Case Issue Ruling Result
  49. 49. “A settlement has been reached… “Blah, blah, complaint alleged, blah, violated federal law, blah… “The allegations involving the employee‟s discharge were resolved through a separate, private agreement between the employee and the company.”Case Issue Ruling Result
  50. 50. “A settlement has been reached… “Blah, blah, complaint alleged, blah, violated federal law, blah… “The allegations involving the employee‟s discharge were resolved through a separate, private agreement between the employee and the company.” The issue that is the most relevant wasn‟t even settled with the NLRB.Case Issue Ruling Result
  51. 51. “A settlement has been reached… “Blah, blah, complaint alleged, blah, violated federal law, blah… “The allegations involving the employee‟s discharge were resolved through a separate, private agreement between the employee and the company.” Not that a settlement matters anyway.Case Issue Ruling Result
  52. 52. “A settlement has been reached… “Blah, blah, complaint alleged, blah, violated federal law, blah… “The allegations involving the employee‟s discharge were resolved through a separate, private agreement between the employee and the company.” (Remember the spoiler?)Case Issue Ruling Result
  53. 53. Plus…Case Issue Ruling Result
  54. 54. …because of the settlement, the reason for termination was never determined definitively.Case Issue Ruling Result
  55. 55. Meaning, we don‟t know if she wasreally fired for the Facebook comments, or just being a terrible employee. Case Issue Ruling Result
  56. 56. So we don‟t really have anything “legal” to go on as a result of this case. Case Issue Ruling Result
  57. 57. Sorry for the lame ending.Case Issue Ruling Result
  58. 58. Ha. Sorry for the lame ending.Case Issue Ruling Result
  59. 59. This went to trial, so we get a lot more out of this case.
  60. 60. ADS encourages reporters to open Twitter accounts. Reporter creates an account, references the ADS as his employer, and includes a link to the ADS website. “The ADS‟s copy editors are the most witty and creative people in the world. Or at least they think they are.” Reporter meets with HR and managers – directed not to air grievances like that.Case Issue Ruling Result
  61. 61. ADS encourages reporters to open Twitter accounts. Reporter creates an account, references the ADS as his employer, and includes a link to the ADS website. “The ADS‟s copy editors are the most witty and creative people in the world. Or at least they think they are.” And the reporter shaped up. The end. Reporter meets with HR and managers – directed not to air grievances like that.Case Issue Ruling Result
  62. 62. ADS encourages reporters to open Twitter accounts. Reporter creates an account, references the ADS as his employer, and includes a link to the ADS website. “The ADS‟s copy editors are the most witty and creative people in the world. Or at least they think they are.” Just kidding. Reporter meets with HR and managers – directed not to air grievances like that.Case Issue Ruling Result
  63. 63. “You stay homicidal, Tucson. See Star Net for the bloody deets.” “What?!?!? No overnight homicide? WTF? You‟re slacking Tucson.” “Hope everyone‟s having a good Homicide Friday, as one Tucson police officer called it.” “ „Drug smuggler tries to peddle his way into the U.S.‟ Um, I believe that‟s PEDAL. Stupid TV people.”Case Issue Ruling Result
  64. 64. Reporter meets again with managers; told not to tweet anything work related until a follow-up meeting. Reporter changes his Twitter name, removes some of his supervisors as followers, and tells co-workers to “be careful.” Reporter is suspended and subsequently terminated.Case Issue Ruling Result
  65. 65. Was the conduct of the reporter “protected concerted activity”?Case Issue Ruling Result
  66. 66. The termination was legal because the reporter “was terminated for writing inappropriate and offensive Twitter postings that did not involve protected concerted activity.”Case Issue Ruling Result
  67. 67. The termination was legal because the reporter “was terminated for writing inappropriate and offensive Twitter postings that did not involve protected concerted activity.” It did not relate to the terms and conditions of his employment or seek to involve other employees in issues related to employment.Case Issue Ruling Result
  68. 68. “Stop airing grievances or commenting about the ADS in a public forum.” “You are not allowed to tweet anything work related.” “You are to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company.”Case Issue Ruling Result
  69. 69. Employers can take action based on comments made in social media forums, as long as the comments do not constitute protected concerted activity.Case Issue Ruling Result
  70. 70. Recent CasesInvolving Protected Concerted Activity
  71. 71. Lutheran Heritage Village - Livonia This case answers the question, “What policies could reasonably chill Section 7 rights?”
  72. 72. Lutheran Heritage Village - Livonia Brrrr.
  73. 73. Lutheran Heritage Village - Livonia A policy chills protected activity if: The rule does not explicitlyThe rule explicitly restricts restrict protected activities, protected activities but: Employees would reasonably construe the language to prohibit protected activity The rule was promulgated in response to union activity The rule has been applied to restrict the exercise of protected rights
  74. 74. Sears Holdings This case answers the question, “What docompanies need to do to meet the criteria set up in Lutheran Heritage Village-Livonia?”
  75. 75. Sears Holdings The Sears‟ Policy had the following characteristics: It was given a purpose It had a disclaimer “Egregious misconduct” was clarified by examplesNo disciplinary action was taken based on the policy.
  76. 76. Sears Holdings It was given a purpose“In order to ensure that the Company and itsassociates adhere to their ethical and legalobligations…”“In order to maintain the Company’s reputationand legal standing…”
  77. 77. Sears Holdings It had a disclaimer“The intent of this Policy is not to restrict theflow of useful and appropriate information, butto minimize the risk to the Company and itsassociates.”
  78. 78. Sears Holdings “Egregious misconduct” was clarified by examples• Confidential information of company or clients• Embargoed information or intellectual property• Explicit sexual references• Reference to illegal drugs• Obscenity or profanity• Disparagement of protected classes
  79. 79. Sears HoldingsNo disciplinary action was taken based on the policy.
  80. 80. Sears Holdings “No employee could reasonably construe the (Policy) to prohibit Section 7 activities. “(There is no evidence) that the Policy was promulgated in response to the Union campaign, the s-tech listserv discussions, or any other Section 7 activity. “There is no evidence that the Employer has used the policy to discipline any employee for engaging in protected activity.”
  81. 81. Sears Holdings “No employee could reasonably construe the (Policy) to prohibit Section 7 activities. “(There is no evidence) that the Policy was promulgated in response to the Union campaign, the s-tech listserv discussions, or any other Section 7 activity. “There is no evidence that the Employer has used the policy to discipline any employee for engaging in protected activity.”Sound familiar? Remember the criteria that was set up inLutheran Heritage Village case?
  82. 82. Sears Holdings “No employee could reasonably construe the (Policy) to prohibit Section 7 activities. “(There is no evidence) that the Policy was promulgated in response to the Union campaign, the s-tech listserv discussions, or any other Section 7 activity. “There is no evidence that the Employer has used the policy to discipline any employee for engaging in protected activity.
  83. 83. What Now?How to Apply NLRB Decisions
  84. 84. Formulate a specific policy regarding theuse of social media.• Define social media• State the employer‟s position on the use of social media to discuss the company• Identify specific prohibited topics• Encourage employees not to mix business with personal postings“Ultimately, the „keep it job-related mantra‟needs to come into play.” John Quirke, Archer & Greiner SHRM Employment Law and Legislative Conference, 14 March 2011
  85. 85. Remove prohibitions against discussing wage, hour, and working conditions with other employees from any policy you maintain.Content Format Implementation
  86. 86. Have a purpose. Have a disclaimer. Use lists to clarify policy and give prohibitions context.Content Format Implementation
  87. 87. Do not impose policies in response to unionization. Do not discipline employees for talking about protected topics.Content Format Implementation
  88. 88. Like when an employer allows employees to check theirFacebook pages during break time, but then prohibits them from doing so when employees start complaining on Facebook about working conditions. Do not impose policies in response to unionization. Do not discipline employees for talking about protected topics. Content Format Implementation
  89. 89. Do not impose policies in response to unionization. Do not discipline employees for talking about protected topics. This is why the Twitter case worked out – the employee was not fired for talking aboutprotected topics. He was fired for talking about unprotected topics.Content Format Implementation
  90. 90. Bad homicide jokes. Do not impose policies in response to unionization. Do not discipline employees for talking about protected topics.Content Format Implementation
  91. 91. Do not impose policies in response to unionization. Do not discipline employees for talking about protected topics.Yes. Bad homicide jokes. Thank you.Content Format Implementation
  92. 92. Conclusion
  93. 93. Businesses are currently on a sandy foundation when it comes to social media. There is a fine balance between the need for protection and employee rights. The NLRA gives employees the right to organize. The NLRA prohibits employers from interfering with this right. Employees do not have absolute rights to the freedom of speech at work. Social media forums are acceptable places for employees to “organize”. Posting within social media forums can still leave employees vulnerable. There is a clear criteria around which to frame a social media policy. Don‟t prohibit protected activity. Use a purpose, disclaimer, and lists in policies. Call real lawyers with concerns.
  94. 94. Daniel Larsen ▪ http://www.linkedin.com/pub/daniel-larsen/19/8b8/910

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