Tag Archives | social media

And the NLRB saga continues

By on October 5, 2012 in Our Blog

Next week I will be speaking at the Atlanta HR Star conference.  One of my sessions is about what the NLRB has been up to lately.  This could be a several day seminar, as the NLRB has been so activist in its attempts to insert itself into workplaces all over the country, unionized or not.  Lucky for the attendees, I do not have that much time.  But there have been a couple of doozy’s that have come out in the past couple of weeks that every HR professional should know about.

The context: You probably already know the Board has been crazy busy trying to stay relevant for the 93% of American workplaces that are non-unionized.  It added a page to its website on June 18, 2012 dedicated to just that (the “protected concerted activity” page).  And it’s been striking down all kinds of seemingly innocuous policies on the grounds that they interfere with employees’ rights to engage in protected concerted activity.  It’s hard to keep up with the flurry of activity.  (But here’s a great resource if you want to see everything that’s been going on: Ohio Employer’s Law Blog)

Here’s the latest.  In Karl Knauz Motors, Inc. the Board held the employer’s “courtesy policy” was unlawful.  The policy provided:

Courtesy is the responsibility of every employee.  Everyone is expected to be courteous, polite and friendly our customers, vendors and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

The Board concluded this policy could be reasonably construed by employees as limiting their right to engage in protected concerted activity.  Seems like quite a stretch, no?  But this is the Board’s position these days.

On a positive note, the Board actually upheld the employer’s termination of an employee based on his social media activity.  Yep, that’s right, it ruled for the employer on this issue.  The employee had criticized a co-worker for letting the 13-year old son of a customer sit behind the wheel of the car (which ended up in a nearby pond) and posted pictures of the errant vehicle on Facebook.  Not protected concerted activity, according to the Board.  (Ah, common sense prevails!)

So what’s an employer to do?  Pay close attention.  Be very careful in reviewing and drafting policies and terminating or disciplining employees based on social media activity.  And most importantly, consult with counsel.  This area is a mess and even the savviest among us does not know which way the wind will blow.  But we can help you make informed decisions.

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The NLRB takes aim at at-will employment

By on August 2, 2012 in Our Blog

I spoke at the HR Star conference in Cleveland last week and one of my topics was the NLRB: what the agency has been up to and how it has been doing its darndest to stay relevant in a world that is less and less unionized.  It’s done a fine job, finding creative ways to insert itself in workplaces across America, unionized or not.  It recently created an entire web page devoted to “protected concerted activity,” explaining to employees that they have rights in this arena regardless of whether they are represented by a union.  The page (click here to see for yourself)  contains a map of the U.S. with illustrative cases mapped out from coast to coast, showing how the NLRB “protected” employees from employer attempts to restrain or punish “protected concerted activity.”  One of the most widely talked about ways the NLRB has done this is in the arena of social media.  There have been a whole bunch of cases where the NLRB has stepped in to smack down an employer who punished an employee for, for example, Facebook postings critical of the employer.  Acting General Counsel Lafe E. Solomon has already issued three reports dedicated to this topic alone (click here for more info).  The upshot of all this activity is that employers are finding themselves increasingly restrained in dealing with all kinds of employee (mis)conduct.  Think you can discipline an employee who goes online to gripe about a supervisor or other employment issues?  Think again.

Just when I thought the tide has got to turn, the NLRB is now taking aim at at-will employment.  You know, the doctrine that provides an employer is free to terminate the employment relationship at any time for any reason (other than an illegal one, like discrimination), and the employee has this same right.  If you have a handbook (which you should), I’d bet my bottom dollar it’s got at-will language sprinkled throughout.  The NLRB has recently taken the position that an at-will disclaimer that essentially says “nothing can change the at-will nature of the employment relationship” violates the NLRA in that it implies employees cannot engage in protected concerted activity to change the at-will nature of the relationship.  (See American Red Cross Arizona Blood Services Division).  Even scarier, the NLRB filed a complaint against Hyatt Hotels, whose at-will disclaimer was narrower than the Red Cross policy.  Hyatt’s clause stated “I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either Hyatt’s Executive Vice President/Chief Operating Officer or Hyatt’s President.”  The import?  Employees can try to change their at-will statement, via concerted activity or otherwise.  What would the Administrative Law Judge have ruled?  We won’t ever know, because Hyatt settled.  I sincerely hope this clause would have been upheld.

The NLRB is headed down a path that is dangerous for employers.  Employment practices we have taken for granted for decades are now being challenged.  The NLRB’s newest encroachment pertains to workplace investigations.  As a workplace investigator, I’m concerned.  I’ll get to that one soon.

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The social media “rush” to end Rush

By on March 7, 2012 in Our Blog

Conservative talk show host Rush Limbaugh’s anti-women comments may finally have caught up with him, thanks to social media.  It’s part of his shtick to say outrageous things about a whole host of issues, including race, gender, gay rights and, of course, politics.  But something seems to have shifted in response to his latest tirade against Georgetown University student Sandra Fluke.  In response to her advocating women’s reproductive rights in the current political battle over who should pay for contraceptives, Rush called her a “slut” and a “prostitute” and said she should stop having so much sex.  The public reaction was swift and severe, thanks to social media outlets Facebook and Twitter.  Advertisers on Limbaugh’s show were so inundated with criticism that many pulled their advertising spots.  For example, within 24 hours of Rush’s remarks Quicken Loans received over 1500 tweets insisting it pull its support from the show.  Last I checked the count was eight major advertisers, including Quicken Loans, AOL and ProFlowers.

What’s the message of this whole debacle?  Social media is a powerful tool.  Swift reactions to public happenings can have very real consequences, as Rush is learning.  

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When Facebook Gets You Fired

By on December 5, 2011 in Our Blog

If you’ve been following employment law trends at all, you know a rising issue is the NLRB’s stance that some employee rants via social media outlets are “protected concerted activity” under the NLRA.  Thus, an employer who fires an employee for complaining about work in general or his or her supervisor in particular runs the risk of incurring the NLRB’s wrath.  The contours of what constitutes protected activity and what doesn’t are murky, and the NLRB is defining them on a case-by-case basis.  So a paramedic who was fired after calling her supervisor a “scumbag” on Facebook engaged in protected activity, according to the NLRB, while a Frito-Lay warehouse employee who was fired after posting on Facebook that he was a “hair away from setting it off” did not.  The agency focuses on a couple of primary factors in making this determination, including whether the comment was part of a group discussion (concerted activity) and whether it concerned terms and conditions of employment.

The Wall Street Journal reported last week that the NLRB has received 113 complaints about violations related to social media since May 2011.  Compared to just a handful of complaints received in the few months prior, this number reflects a growing trend.  So what is an employer to do?  First, have a social media policy.  Second, check with counsel to make sure the policy does not infringe on workers’ rights under the NLRA.  Third, as with all policies, enforce it consistently.

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Firing over Facebook post gets NLRB riled up

By on November 4, 2010 in Our Blog

The intersection of social media and employment law has been the topic of much commentary (including by us).  The general wisdom is that employers should adopt a social media policy and strictly enforce it to protect itself from, among other things, employees bad-mouthing the employer via social media, such as Facebook.  A recent lawsuit filed by the Hartford, CT office of the NLRB throws a complicating angle into the mix.

The NLRB has sued American Medical Response of Connecticut, Inc., based on the ambulance services’ termination of an employee following her posting on Facebook.  The employee complained about her supervisor and co-workers commented on her post.  She then continued to criticize the supervisor.  She was fired three weeks later.

While significant proof issues remain over the reason for the termination, the NLRB has taken the position that firing an employee based on a Facebook post violates the National Labor Relations Act by interfering with “protected concerted activity,” the Act’s linchpin.  According to the NLRB, the employer’s policies barring employees from making disparaging remarks when discussing the company or its supervisors are unlawful.  ”Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity.”  A hearing before an administrative law judge is set for January 25, 2011.

This case is one worth following.  If the judge rules in favor of the NLRB, the employer will find itself stuck between the proverbial rock and hard place, needing to navigate between protecting itself from risks inherent in employee use of social media and not impinging on employees’ right to consult with one another on issues pertaining to the workplace.  It will be a tricky balancing act, to be sure.


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Be prepared for “twittercide”

By on July 8, 2010 in Our Blog

We’ve blogged before about why employers should consider adopting a social media policy.  The recent firing of CNN senior Middle East editor Octavia Nasr provides another reason.  

Nasr posted a note on Twitter last weekend concerning the death of a Lebanese cleric considered instrumental in the formation of Hezbollah, an organization designated by the U.S. as a terrorist group.  The offending tweet read “[s]ad to hear of the passing of Sayyed Mohammed Hussein Fadlallah.  One of Hezbollah’s giants I respect a lot.”  Public reaction was swift and negative.  Nasr explained she was referring to Fadlallah’s support of women’s rights (he had spoken out against “honor killings”), not his terrorist links.  She also released a statement that she had “learned a good lesson on why 140 characters should not be used to comment on controversial or sensitive issues,” such as Middle East politics.  

But according to CNN, the damage was done.  Nasr was fired the next day.  In a written statement, her bosses explained “we believe that her credibility in her position as a senior editor for Middle Eastern affairs has been compromised going forward.”

What can employers learn from this recent example of what has been dubbed “twittercide?”  First, they should expect to confront, more and more, the intersection of the workplace and social media.  Second, they should reach consensus on how to deal with employees using social media outlets to express their views on work-related matters.  For example, are any topics off-limits?  What are they?  Third, to the extent they have expectations in this regard, they should develop and then communicate the rules.

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LinkedIn “recommendations”: an unintentional employment reference

By on January 20, 2010 in Our Blog

Those of us that participate in the social networking site LinkedIn understand the value of recommendations.  The more you have on your home page, the better you look.  So many engage in an informal barter system — I recommend you, hoping that you will in turn recommend me, etc., etc.  But employers and managers need to bear in mind that a LinkedIn recommendation is, essentially, an employment reference.  And there are legal consequences of poorly written or inaccurate employment references, such as claims for negligence and defamation.  

Many employers have policies about employment references, such as that they may only contain dates of employment and positions held, or that they must be screened by HR before they are released.  If you have such a policy, consider making a specific reference to LinkedIn recommendations, to the effect that they be handled the same way as all employment references.  If you don’t, now is a good time to get one.  At a minimum, employers should have a consistent practice with respect to LinkedIn recommendations and should make sure all supervisors are on board.

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Business is best served by a combination of online and old school networking

By on December 7, 2009 in Our Blog

handshakingWith all due respect to our FABULOUS technology/media guru, Jamie Ginsburg, I’m still a fan of old-fashioned face-to-face networking. The Wall Street Journal recently ran an article about the Wednesday 10, a social/business networking group started by William Safire in 1930 that still exists today. The members of the Wednesday 10 (all males, self-made, and primarily Jewish) described the advantages of old school networking: When member Mort Janklow made a career switch from corporate attorney to literary agent, fellow member columnist William Safire offered himself as a famous first client. When Robert Menschel, a senior director at Goldman Sachs, was considering deals involving large consumer companies, he would pick the brain of fellow club member Ed Meyer, the former chief executive of Grey Advertising.

“The Wednesday 10 comprised, at various points, more than 20 men; the goal was a number small enough to maintain intimacy yet large enough to ensure that at least 10 members would show up for each of the monthly Wednesday-night meetings. No more than two representatives of any one industry were permitted. The idea was to combat insularity, to keep the men connected to people and events outside their own professions.”

While criticized by some for the homogenous nature of the group, the lesson is not lost that networking is not only a way to keep socially connected, but it is a significant component in business/client development, marketing and keeping abreast of the quickly changing business environment.

I find this topic of interest because I struggle with mixing business and “friendship” online…do my Facebook “friends” really want to get my blog posts? Is it appropriate to “friend” a client, etc… While I tend to be somewhat old school in this area, I was recently reminded that there is a place for both old-fashioned and online networking when I was approached at a face-to-face networking event by an online friend who told me that he was a fan of the Warren & Hays Facebook page and would not have otherwise known what I did professionally. So while the etiquette is still somewhat murky, it appears that business is best served by a combination of online and good ole-fashioned networking.

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A Word to the Wise: Don’t “Friend” Your Employees

By on October 28, 2009 in Our Blog

Some managers and employers have always walked a fine line between being friendly with their employees and being their friends.  The general rule of thumb (at least if you listen to employment lawyers) has been to maintain enough distance so that friendships don’t muddy the hierarchical workplace waters.  But with the onslaught of social media, and Facebook in particular, what are the new rules?  In Facebook lingo, a “friend” is anyone I am connected to on the site.  I have hundreds of “friends” on Facebook, some of whom I would not even know if I bumped into them on the street.  They are not really friends, yet the world of social media has created this gray area where a lot of mere acquaintances are suddenly called “friends” and are privy to all kinds of personal information.  What is a Facebook fiend who also happens to be a manager or an employer to do?

Our advice is not to “friend” employees (or superiors).  One of the biggest risks is that you may inadvertently learn information about an employee’s protected status that you otherwise would not have known.  Maybe an employee is struggling with depression and posting about her progress (if you have not yet been on Facebook, yes, some people post about such seemingly private information).  You may have had no idea she had a potential mental disability.  If you subsequently discipline her for any reason (poor performance, excessive absenteeism, etc), could she argue that it was her disability that motivated the adverse action?  Absolutely.  (Shanti Atkins of ELT recently blogged about this and other dangers lurking in the social media world – it’s worth a read if you want to know more).  

So resist the urge to “friend” everyone you know.  Managers and employers must always be mindful of their role vis-a-vis their employees, even when off-the-clock.  And, make sure you have a policy addressing the intersection of the world of social media and the workplace.  

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Local Employers Take Advantage of Social Media

By on September 17, 2009 in Our Blog

Northeast Ohio employers are using Facebook, LinkedIn and other social media sites to enhance marketing, networking, relationship building, and recruiting, reports the Employers Resource Council (ERC) in its recently released survey of how Northeast Ohio organizations are using social media in the workplace. According to the survey, 49% of employers use social media for networking and relationship building, LinkedIn being the most popular site.  A significant industry distinction: non-profits and non-manufacturing companies use social media to a much greater degree than manufacturers.

Not surprisingly, most organizations (60%) are discussing using social media to enhance external operations with customers and fewer (33%) are considering ways of using social media to enhance internal operations with employees. Forty-six percent of employers informally monitor the use of social networking tools by employees and 44% have at least one policy regarding employee use of social media in the workplace.

As we previously blogged, it is imperative that employers have a policy that is reasonable and capable of being monitored and enforced. Employers also need to carefully consider the use of social media in the recruiting and hiring process, where an employers’ net surfing can result in exposure to discrimination claims.

We recommend that employers recognize and accept the use of social media in the workplace and implement a policy that is consistent with company operations, culture and goals.

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Are Employers Facing Exposure to Discrimination Claims by Going On-Line?

By on May 12, 2009 in Our Blog

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According to a recent NPR piece, one out of five employers are trolling social network sites like Facebook and My Space to check out potential employees. And why not? On-line name searches and profiles on social media sites reveal all kinds of information that can be help vet potential employees. (Is it understandable that a meat packing plant wants to weed out PETA activists?) But those same sources also divulge information like age, race, religious views, disabilities and military status. The discrimination laws dictate that much of this information cannot be considered in hiring decisions.  When an applicant is rejected, what evidence does the employer have that the decision was based on objective job criteria and not one of the categories protected by law? And what about inadvertent violations of the Fair Credit Reporting Act, which requires employers to notify applicants and obtain their consent before conducting background checks?

Even employers who refrain from on-line searches are faced with the proliferation of social media resumes. On-line sites like Visual CV offer free multimedia resume building where job-seekers can include photographs, videos, work samples and links to social media and professional networking sites. So what is an employer to do? We suggest employers implement a comprehensive policy and practice on how and when on-line searches are performed, including proper documentation that hiring decisions are based on non-discriminatory job criteria.

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