Social media has transformed the way in which people communicate amongst one another. Emails, text messages, Twitter, and Facebook are just some of the new, modern, ways this generation is using to connect with each other. In addition, it is also continually changing the present-day workplace and the relationship between employers and employees. The question is how can employers and employees adjust to this new model of communication in an effective and lawful manner.
According to the N.L.R.B., the National Labor Relations Board, social media, such as certain Facebook conversations, are “protected concerted activity.” In other words, your online conversations about your job workplace are protected to a certain degree. Facebook, LinkedIn, and Twitter are just a few of the top social media websites utilized by employers and employees today, in addition to, the various search engines used to get to those social media websites.
As quoted from the N.L.R.B.’s website, “The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions” (National Labor Relations Board). This federal agency is responsible for framing the rights of workers in the workplace, investigating charges or allegations, facilitating settlements, deciding cases, and enforcing order. The N.L.R.B. was created by Congress on July 5, 1935 to help enforce the Wagner Act of 1935, which “enforces the national labor policy of assuring free choice and encourages collective bargaining as a means of maintaining industrial peace” (Bain). According to the N.L.R.B.’s compiled data for 2010, “26,000 cases were received by the Board through its Regional, Sub-regional, and Resident Offices each year” (“Justification of Performance Budget for Committee on Appropriations”). It is interesting to note that 32.7% of those cases were settles leaving nearly 62% cases either withdrawn, still under investigation, or dismissed all together because of lack of evidence.
According to Barbara L. Camens, here are some statistics about electronic communications use in the workplace (Camens):
- 80% of organizations have written email policies, but only 47% train their workers on email risks, policies and usage.
- 28% of employers have fired employees for email misuse including violations of company policy (64%), inappropriate language or materials (62%), excessive personal use (26%) and breach of confidentiality rules (22%).
- 43% of employers actively monitor employee email. Of those employers, 73% use technology to automatically monitor email, and 40% assign a manager to manually read and review email. 71% alert employees to such monitoring.
- 30% of employers have fired someone for misusing the Internet: viewing, downloading, or uploading inappropriate material (84%), violations of policy (48%), excessive personal use (34%).
The first time social media and the labor laws came to battle was on October 27, 2010 over an ambulance company from Connecticut. The employer had terminated the employee for posting criticizing comments about her supervisor on Facebook. The posting, by the employee, brought light to not having a union representative present at the time of customer service investigation. Postings from fellow co-workers lead to references directed at the supervisor as “psychiatric patient” and a “scumbag.” The N.L.R.B. found that the employee’s Facebook postings constituted as protected activity under the NLRA because they discussed work-related working conditions. This case was ultimately settled per an agreement with the employer to update their social media conduct policy.
Another case involving social media was from a nonprofit social services provider in July 2010 concerning a Facebook posting about an employee’s job performance. An employee began complaining to another employee about services rendered by another company, which included criticizing comments over work performance on Facebook. Over the next several days, four employees were terminated because they had posted responses to the coworker’s initial Facebook post. It was decided by the N.L.R.B. that the Facebook discussion between the employees were in fact protected activity, because it involved working conditions. The four discharged employees were later re-installed.
Since the first case in 2010, the N.L.R.B. has been busy with over 100 separate cases all dealing with social media related terminations. Lafe E. Solomon, with the N.L.R.B. Office of Public Affairs, released a 24-page memorandum, including 14 separate investigations, on August 18, 2011 “involving the use of social media and employers’ social and general media policies” (Solomon). This was released in hopes that it would assist “human resource professionals” and “encourage compliance with the N.L.R.A. Act.” This document was released to the general public with hopes that it helps employers, employees, and even business layers who come into contact with social media cases.
According to the Law Office of English, Lucas, Priest & Owsley, LLP, “employers can violate the N.L.R.B. if they discipline employees for engaging in online conversations with co-workers on their personal social media pages about issues relating to their wages, terms, and conditions of work. But, employers still have the right to discipline employees who use social media to reveal confidential information about the company or who use social media to unlawfully harass co-workers on the basis of their race, sex, religion, or other protected characteristics” (NLRB’s Position Regarding Employer Restriction on Employee Use of Social Media).
A CareerBuilder survey indicates that, “35% of employers use social media to promote their company to find new business or recruit and research potential employees” (“EsbJournal”) Workers are turning to social media websites not only for personal reasons, but for professional reasons as well. They are looking for job listings, information about companies, and employee testimonials. Workers also use social media networks to share negative opinions ranging from company communication failures to workplace conditions.
These findings from the N.L.R.B. can benefit either the employer or the employee. “Both parties need to be careful with what they do online,” said Mark Neuberger, a management-side labor lawyer with Foley & Lardner in Miami. “There’s no direct easy answer to what’s allowable” (Goodman). Out of date policies also affect the outcome of the case. And lets not forget the reaction time from management about an issue. This is why companies need to be aware of issues that come to surface without sweeping them under the rug.
According to the Cindy Krischer Goodman with the Vancouver Sun, “what emerges from this report, the first of its kind, is that social media policies aren’t protecting companies the way many of them had expected” (Goodman). Social media is quickly changing leaving some companies scratching their heads as it flies by. HR Managers are ultimately put at the front lines of this battle. They need to know the ins and the outs to their policies and understand how most need to be updated as technology changes.
According to the N.L.R.A., the National Labor Relations Act, Section 7 is the section most used in these social media cases (“National Labor Relations Board”):
Sec. 7. RIGHTS OF EMPLOYEES
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 or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3) of this title].
The N.L.R.B.’s rulings on the bounds of social media can be equally confusing. They supposedly take vague or unclear language inside policies and produce embarrassing comments about a company’s reaction to an employee’s communication. In a Technology and Marketing Law Blog, Eric Goldman says, “It puts the employer in a pretty awkward position to have to tolerate employee comments about workplace issues if they are taking place in front of customers or clients. The issue of customer or client perception did not seem like it was of any significant concern to the N.L.R.B.” (Balasubramani). Employers should start instilling a more open atmosphere among employees of their company rather than allowing their grief to hit social media.
What exactly should employers be doing right now in reaction to the N.L.R.B.’s rulings over social media use? Companies and Human Resource Directors should be evaluating whether or not their policies need to be adjusted or reconfigured. According to an article by Patrick H. Hicks and Deborah L. Wesbrook, “A good middle course would involve adding language to existing social media policies explaining that the policy will not be construed or applied in a manner that interferes with employees’ rights under Section 7 of the N.L.R.A.” (Hicks, and Westbrook). They also note in their article that employers should consult their counsel before moving forward with any social-media termination decisions.
In an article by Daniel Schwartz, he explains why we need to be focused on the N.L.R.B.. “First, the N.L.R.B. takes the position that it can enforce its laws against unionized employers and non-unionized ones too. Second, the N.L.R.B. is going after policies not just actions” (Schwartz). The N.L.R.B. has positioned itself to take on some of the newest issues that are arising each day. Without prior rulings or court appeals, it’s hard for the N.L.R.B. to take appropriate actions. Simply put, there is nothing to compare the board to.
In February 2010, a bartender was fired from his job because of conversations about his job workplace and tipping policy online with a relative via Facebook. He was complaining about how he hadn’t had a raise in five years and that he was doing the work of the waitress’s but not receiving any tips. The N.L.R.B. found no concerted activity in this case, or, in other words, discussion between other employees about the workplace conditions. Since the bartender didn’t have any co-workers respond to his post or comment, it didn’t amount to concerted activity.
In another case, a retail store operator was disciplined for profane Facebook comments criticizing the local store manager. The criticizing comments were in regards to mispriced or misplaced merchandise. The employee was given a one-day paid suspension and no opportunity for advancement over the next 12 months. The N.L.R.B. found that the comments made to Facebook were considered an individual gripe and not concerted activity. Although other employees commented on the post, it “contained no language suggesting that the employee sought to initiate or induce coworkers to engage in group action” (Solomon).
Employers are now scrambling to find and update their policies as it pertains to social media usage. In a blog post by Charles D. Lawson, he gives tips to employers for creating a valid social media policy. He explains (Lawson):
1. Avoid outright bans on discussing wages (employee discussions regarding how much they are paid, for example) and other working conditions.
2. Avoid broad bans on “insulting,” “inappropriate” or “disparaging” comments by employees about the employer or its management, unless the policy defines what language and/or conduct is encompassed by the ban, and the policy contains limiting language making clear that the policy does not forbid activity protected under the N.L.R.A.. (NOTE: Bans on sexually explicit, harassing, or maliciously false statements are proper.)
3. Avoid bans on employee postings of pictures of themselves on the internet that depict the company, its uniforms, logos, and the like, since such a policy would, for example, prohibit an employee from carrying a picket sign bearing the company logo or wearing a company t-shirt at a protest involving the terms and conditions of employment, activities that are protected by federal law.
4. Similarly, avoid bans on the use of the company name, address or other information on employees’ personal social media profiles because such information can assist employees in identifying each other and encourage the type of concerted activity specifically protected by the N.L.R.A..
5. Avoid outright bans on employees speaking to the media, since employees have a right to speak to reporters about wages and other terms and conditions of employment. (NOTE: A policy that seeks to ensure a consistent company message and does not restrict employee interaction with the media except as necessary to effectuate that purpose does not violate the N.L.R.A.).
According to a recent Huffington Post news article, a N.L.R.B. case against Boeing for violating labor laws when it moved its airplane manufacturing plant from Seattle, Washington to Charleston, South Carolina. “The Republican-dominated House approved a bill Thursday that would undercut the government’s labor dispute with Boeing Company. Union leaders claim the bill would render toothless the board’s ability to enforce labor laws when companies simply eliminate work to get rid of employees who are pro-union” (Hananel). Boeing has denied the allegations. “It tells job creators they don’t have to fear an activist N.L.R.B. reversing important decisions about where to locate a business,” said Minnesota Rep. John Kline, chairman of the House Committee on Education and the Workforce. The bill was later passed prohibiting the N.L.R.B. from blocking the Boeing from opening their new plant in Charleston, South Carolina.
Whether you are an employer or an employee, there are various ways to balance your interaction with others online. Facebook is seen as all personal while LinkedIn is all professional. According to Kirsten Dixson, a reputation management and online identity expert, she suggests (Dixson):
We are at a point where early adopters are becoming the thing of the past; if you aren’t an early adopter, you’re a late adopter. People are now learning to use social media technology on the fly. Generation Y, also known as “Millennials” or “Echo Boomers,” portrays a certain 70 million demographic all over the world; a demographic that can’t go unnoticed. Born between the mid-1970 and early 2000’s, these young individuals were born into a society with a different attitude on outlook on life holding a cell phone in one hand and an iPod in another.
This young generation has grown up with the available technology such as cell phones, the Internet, text messaging, and laptops to help them connect to the world using more and more social media to do so. According to Forrester’s North American Consumer Technology Adoption Study of 2006, “Generation Y’ers, defined as 18 to 26 years old, are spending more time online, watching less TV, engaging in more social computing activities, such as instant messaging; and using more social networking sites like MySpace than any other generation” (Gonsalves). Technology seems to be the key factor in the separating the young from the old; or Generation Y from Generation X.
This generation has been cited for it’s over the top and exceedingly effective ways of multi-tasking. The start of this underestimated talent can first be noticed at a young age while growing during college into a full-blown talent. Working on an item on the computer, while listening to an iPod, while catching up with friends via text messaging is just a normal, every-day routine for these young geniuses. No generation has ever had the ability to concentrate on so many tasks at hand before. No more need for those paper and pencil “To-Do Lists” anymore… there’s an app for that!
Most of this generation has very unique consumption behaviors. Marketers have to be constantly aware of the changing consumer behaviors of this group because, with social media as their backbone, it could change in a heartbeat. Brand loyalty has also been a key factor in many of the millennials purchasing decisions. They see beyond the fabric and pay close attention to what the company does beyond their factories. For instance, GAP introduced its campaign to help fight AID’s in Africa. Generation Y and many other generation’s latched onto this concept and GAP started a new trend. According to Retail Customer Experience.com, “In just a decade we’ve influenced the production of monogrammed screen tees, colored laptop computers and rhinestone cell phone accessories” (Why Generation Y isn’t buying your products). The concept of individuality takes the lead role among the decisions of most young millennials.
Apple recently made headline news over the firing of one of their employees after a Facebook “rant.” What makes this case so particularly interesting is that Apple had a very solid social media plan that it took to very seriously. Apple’s policy specifically bans any critical remarks about the brand whatsoever. This employee went on about, “his ‘jesusPhone’, misfiring apps and job at one of Apple’s shops” (Smith). Another employee, and Facebook friend, was the one who reported him to his supervisors. According to 9to5Mac.com, here are some of the few interesting points in Apple’s social media policy (“9to5Mac; Apple Intelligence”):
At this time the N.L.R.B is not involved, and probably won’t be, because Apple has a clear social media policy that prohibits the use of social media to vent about their brand image. In addition, this employee’s Facebook rant was not of anything associated with working conditions or supervisor issues. Currently, it seems that this is the first dismissal of an employee, by Apple, over a social media related issue.
In my opinion, I believe the N.L.R.B. is doing the right thing by protecting social media conversations and drawing lines where concerted activity is and where it is not needed. Furthermore, in today’s social media society, we are learning as we go. That is also something I believe the N.L.R.B. must watch out for; making sure they are not pushing the limits to decisions of previous standings. Since social media is so new, there are not as many cases or previous explanations. If the N.L.R.B. isn’t careful, they could be, without knowing, creating a web of temporary rules that, for all we know, could change the next time another social media platform comes along.
Social media rules are ever changing and who will be able to predict what the next phase will be like? What kind of changes or rules will that bring? How will the N.L.R.B. handle those rulings? What happens if those rulings don’t comply with their original rulings? Here is my case in point: If social media is changing all the time, will the N.L.R.B. even be needed in the next 20 years? Won’t these social media plans just become invalid again and will need to be revised to cover the new social media? I just think that the N.L.R.B. is just a temporary fix to an ongoing leak; a social media leak. They are just taking on the role of the city police simply because nobody else has stepped up to take that role. There is no unifying social media director or coordinator.
I think people should be more accountable for their actions and not take it upon themselves to air their “dirty laundry” on Facebook or any other social media website for that matter, when they know that what they type could come back to haunt them down the road. Accountability and common sense should be taught instead of social media responsibility.
Works Cited
Bain, Brian. “The NLRB: The Wagner Act of 1935.” Web. 23 Nov 2011.
<http://www.stfrancis.edu/content/ba/ghkickul/stuwebs/btopics/works/wagner.htm>.
Balasubramani, Venkat. “Overreactive Guidance for Social Networking.” Technology &
Marketing Law Blog. 09 05 2011. Web. 25 Nov. 2011. <http://blog.ericgoldman.org/archives/2011/09/overreactive_gu.htm>.
Camens, Barbara. “Social Media In (And Out) Of the Workplace.” 5th Annual Labor and
Employment Law Conference. ABA Section of Labor and Employment. Seattle, Washington. November 2-5, 2011. Lecture.
Dixson, Kirsten. “Facebook Etiquette: Five Dos and Don’ts.” PCWorld. 22 Nov 2008:
Web. 29 Nov. 2011. <http://www.pcworld.com/businesscenter/article/154374/facebook_etiquette_five_dos_and_donts.html>.
Gonsalves, Antone. “Gen Y Taking Technology To New Level.” Information Week
Global CIO 21 07 2006: Web. 1 Nov 2011. <http://www.informationweek.com/news/global-cio/showArticle.jhtml?articleID=191600959>.
Goodman, Cindy. “Do frustrated workers have the right to complain online? .” The
Vancouver Sun. N.p., 10 05 2011. Web. 25 Nov 2011. <http://www.vancouversun.com/business/angry workers have right complain online/5501834/story.html>.
Hananel, Sam. “Boeing, NLRB Case Faces House Vote.” Huffington Post Politics. 15
Sep 2011: Web. 23 Nov. 2011. <http://www.huffingtonpost.com/2011/09/15/house-nlrb-boeing-case_n_963802.html?>.
Hicks, Patrick, and Deborah Westbrook. “NLRB Challenges Employers’ Social
Networking Policies.” Casino Enterprise Management. 01 03 2011. Web. 25 Nov 2011. <http://www.casinoenterprisemanagement.com/articles/january-2011/N.L.R.B.-challenges-employers’-social-networking-policies>.
Lawson, Charles. “Tips for Creating a Valid Social Media Policy.” Grant, Konvalinka &
Harrison, P.C. 10 31 2011. Web. 25 Nov 2011. <http://www.gkhpc.com/blog/2011/10/tips-for-creating-a-valid-social-media-policy.shtml>.
Schwartz, Daniel. “The NLRB’s Obsession with Social Mediat Continues.” Connecticut
Employment Law Blog. 14 Nov 2011. Web. 23 Nov. 2011. <http://www.ctemploymentlawblog.com/2011/11/articles/the-NLRBs-obsession-with-social-media-continues/>.
Smith, Hayden. “Apple Fires Employee over iPhone Facebook rants.” Metro. (2011):
Web. 3 Dec. 2011. <http://www.metro.co.uk/tech/883333-apple-sacks-worker-for-ranting-about-iphone-on-facebook>.
Solomon, Lafe. United States. National Labor Relations Board. Report of the Acting
General Counsel Concerning Social Media Cases. Washington, DC: , 2011. Web. <https://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases>.
United States. National Labor Relations Board. Justification of Performance Budget for
Committee on Appropriations. 2011. Web. <http://www.nlrb.gov>.
“National Labor Relations Act.” National Labor Relations Board. United States, Web. 23
Nov 2011. <https://www.nlrb.gov/national-labor-relations-act>.
“New Survey Reveals Social Media Trends Among Employers.” EsbJournal. (2010):
Web. 23 Nov. 2011. <http://esbjournal.com/2010/08/new-survey-reveals-social-media-trends-among-employers/>.
“NLRB’s Position Regarding Employer Restriction on Employee Use of Social Media.”
Developments in Human Resource Law. ELPO. Southern Foods, Bowling Green, KY. 17 Aug 2011. Lecture.
“Revealed: Apple’s internal policies on employee social networking, speculating on
rumors, leaking, blogging, and more.” 9to5Mac; Apple Intelligence. (2011): Web. 3 Dec. 2011. <Revealed: Apple’s internal policies on employee social networking, speculating on rumors, leaking, blogging, and more>.
“What We Do.” National Labor Relations Board.” Web. 23 Nov 2011.
<https://www.nlrb.gov/what-we-do>.
“Why Generation Y isn’t buying your products.” Retail Customer Experience 05 02 2010:
Web. 1 Nov 2011. <http://www.retailcustomerexperience.com/article/2896/Why-Generation-Y-isn-t-buying-your-products>.
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