Hayden Creque made this presentation in December 2011 to the St. Cloud Chamber’s NEXT group.

1. S ocial Media
In
The
Next – S t. Cloud
December 2011
Workplace
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2. Ques tion
Brenda is a disgruntled employee. Her boss John is new to Telecom industry and
does not have a clue. And he is condescending to her and other employees when at
work. Brenda is an avid user of Facebook. She is connected to several other
employees at the company. She vents frequently to her Facebook friends. Recently,
she made the following post:
“I do not understand it, John is a bonehead. He treats me and other employees like
crap– frequently talking down to us. I cannot believe the company hired him. I think
it is time for me and others who have shared their concerns with me to approach
John’s boss about his lack of knowledge and approach. I cannot work for this man and
at this company much longer under these conditions. John has to improve.”
Can John fire Brenda?
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3. Probably Not!
• It is unlawful to discharge employees who use a social network platform to engage
in discussions, with other employees, related to working conditions.
• An employee’s criticism of supervisory actions, where they reflect several
employees’ concerns, is protected.
– Discussions may be protected even when it includes related name-calling, criticisms, sarcasm, and
swearing.
– An alleged employee defamatory statement, about a company or supervisor, may be protected. The
statement only loses protected status if it is maliciously false.
• It is illegal for an employer to threaten to sue an employee engaged in a protected
activity even when the employer has a reasonable basis for potential legal action.
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4. There’s a Law for That
• The Nation Labor Relations Act – It Applies to Unionized and Non-Unionized
Workplaces.
– Section 7, is the heart of the NLRA. It defines protected activity.
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid and protection.
– Section 8 defines employer unfair labor practices.
•Five types of conduct are made illegal:
– Employer interference, restraint, or coercion directed against union or collective activity
(Section 8(a)(1))
– Employer domination of unions (Section 8(a)(2))
– Employer discrimination against employees who take part in union or collective activities
(Section 8(a)(3))
– Employer retaliation for filing unfair-labor-practice charges or cooperating with the NLRB
(Section 8(a)(4))
– Employer refusal to bargain in good faith with union representatives (Section 8(a)(5))
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5. Its Not A ll B ad News
The protections afforded employees are
somewhat narrow in scope. The employee must
be engaged in “concerted activity”.
Remarks made for an employees personal
amusement, and individual gripes are not protected
conduct. Thus, you can discipline for such acts.
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6. What A bout A S ocial Media
Policy?
• You can and should have a social media policy.
• You can proscribe certain conduct in its social media policies. But beware
blanket statements like : 1) a proscription against employees posting
pictures of themselves, which depict the company in any way; and 2)
prohibitions on disparaging comments, inappropriate discussions, and use
of generally offensive language.
• In short, the policy cannot be too broad. Consider minimally a so called
“catchall” provision: “Notwithstanding the foregoing, nothing in this
policy shall be construed to limit, in any way, your rights under any
applicable federal, state or local laws.”
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7. Ques tion
Michelle sells her services online. Since her business is new she
is actively soliciting testimonials for her work in exchange for 4
hours of free services. She then posts these testimonials to her
LinkedIn Profile, website and Facebook pages and she includes
excerpts in here advertising.
What are the issues raised?
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8. Business | Employment | Internet | Privacy | Information Security

9. Truth-In-A dvertis ing
“If there’s a connection between the endorser
and the marketer of the product that would
affect how people evaluate the endorsement, it
should be disclosed.”
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10. There’s A Law For That Too
Federal Trade Commission Act says:
2.You cannot engage in deceptive or misleading practices.
(Section 5 of the FTC Act -15 U.S.C. 45)
3.An act or practice is deceptive if it misleads “a significant
minority” of consumers.
Endorsement and Testimonial Guidelines. (16 CFR Part 255)
Guidelines for advertising sets a truth-in-advertising bar.
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11. When Do the Rules A pply?
If you:
•Provide free products or other perks
•Either individually or as part of a network marketing programs
“Compensation” is about more than money:
•In-kind services
•Free products
•Perks
•Gifts
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12. How to Dis clos e
• Name the marketer.
• Identify the “compensation.”
• Proximate placement.
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13. A ddres s ing E ndors ements in
Your C ompany’s S ocial Media
Policy? paid endorsers need to disclose their relationship with the
• Employees like
company.
• Your policy should advise that whether it’s a Facebook like or a product
testimonial the employee needs to disclose that they work for your
company.
• Provide simple instructions for disclosures: “My name is ________, I
work for ___________ the manufacturer or this product.” Also instruct
the employee about appropriate proximate placement.
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14. Ques tions
Hayden Creque
2008 11th Street N, Sartell MN 56377
P 320.247.3439
E hayden@crequelaw.com
http://crequelaw.com
Twitter: @haydencreque
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