social media

Assoc. Press on Employees & Social Media

April 17, 2015 – Here is an article from AP on Social Media and Employee rights

 

NEW YORK – Bosses can get mad when staffers vent on social media about their jobs, but they might not be able to get even.

When one of Bert Martinez’ employees posted gripes about her job and the boss on Facebook last year, the publicist consulted his lawyer, who said the staffer couldn’t be fired.

“The first lesson I learned is, employees are allowed to vent,” said Martinez, owner of Bert Martinez Communications in Phoenix. “If they’re saying, ‘Hey, it’s hard working here and I find this environment unpleasant,’ you can’t fire them for that.”

The employee quit a week after Martinez learned about the post.

The government protects workers’ right to say what they want about where they work, even if it’s in a vitriolic and insulting tweet or post. It’s illegal for an employee to be fired for a post about working conditions, whether it’s pay, hours, assignments, difficult supervisors, dress code or any other issue.

So employers shouldn’t try to restrict workers’ freedom of speech or retaliate if there’s a post they don’t like.

It’s an issue that companies of all sizes have to deal with, but it’s often more challenging for smaller companies because they typically don’t have large human resources departments or lawyers on staff to advise them.

Workers who complain about employers on social media can’t be fired if they’re involved in what’s called concerted activity, or joining with fellow staffers to improve working conditions, according to the U.S. National Labor Relations Board, the government agency responsible for upholding workers’ rights.

“The NLRB is effectively taking the position that commentary about working conditions on social media is completely protected,” said Henry Perlowski, an employment law lawyer with Arnall Golden Gregory in Atlanta.

A 2014 NLRB decision shows how broadly the agency views employees’ rights to make such critical posts, Perlowski said. The NLRB said a restaurant illegally fired two workers for taking part in a Facebook discussion of problems in how income tax was withheld from paychecks. The discussion mentioned a meeting about the issue. One employee was fired for a comment that contained an expletive describing one owner, and the other was dismissed for “liking” a post.

Because the posts were related to working conditions, and the employees were discussing concerted activity, or jointly seeking a resolution of their problems, the posts were protected. The NLRB reversed the firings.

Owners also can’t resort to other disciplinary measures, Perlowski said. That rules out suspensions, reprimands, pay cuts and promotion denials.

However, the NLRB will uphold firings based on posts that damage a company, disparage its products or services or reveal trade secrets or financial information, said Paula Lopez, an employment law lawyer with Allyn & Fortuna in New York. But there can be gray area, for example, when a post is critical of a company’s or services but is also related to working conditions.

Posts encouraging insubordination aren’t protected, Lopez said, citing a 2014 case that upheld an employers’ decision not to rehire workers who had posted plans to show up at the job and not do work.

Employees also can be fired for posting information about clients or customers.

If their posts are racist, homophobic, sexist or discriminate against a religion, companies should fire workers rather than be seen as tolerating or condoning the employees’ views.

The NLRB has also said griping or insults by one employee and that have no connection to working conditions are not protected. For example, one that ridicules the way the boss looks, dresses or speaks.

Three steps can help companies address social media-related problems:

Companies should have a written social media policy spelling out what employees can post. It should be specific, with examples of what’s acceptable.
The policy should be reviewer with a lawyer or human resources specialist to be sure it wouldn’t violate federal, state or local laws.
If a staffer has made a negative post about the company, get advice from an employment law attorney or human resources provider before taking disciplinary action.

IN THE NEWS – RESUME, JOB APPLICATION . . . . AND FACEBOOK PASSWORD?

According to recent stories in the media an increasing number of employers are asking job applicants to either provide their login information for Facebook, LinkedIn and other social networking sites, or log onto their private account during the actual job interview. Others ask the applicant to accept a “friend” request from an HR representative or a recruiter.

The following are just a few of the news articles published on this topic recently:

http://www.cnbc.com/id/46792761/page/2/

http://www.wtsp.com/news/article/246040/250/Would-you-share-your-Facebook-password-during-a-job-interview

http://www.valleynewslive.com/story/17204725/facebook-password-needed-for-a-job-interview

http://www.cbsnews.com/8301-500395_162-57400973/should-job-seekers-open-up-their-facebook-page/

Although several states are considering introducing legislation that would limit a public employer’s access to private information on social networking sites, currently there are no laws preventing an employer (either public or private) from requesting access to an applicant’s social media site – or preventing the employer from refusing to hire an applicant who says no.

What type of information are employers looking for? Many are using a social network site as a replacement for character references and a background check. An individual’s Facebook page can reveal information about alcohol consumption, use of illegal drugs, inappropriate photos, and rants about a former employer, just to name a few potential disqualifiers. An employer has every right to make a no-hire decision based on the foregoing.

However, an individual’s Facebook page (or other social network site) may also reveal information the employer legally cannot factor into the hiring decision – information, for example, regarding an individual’s sexual orientation, age, race, marital status, national origin, disability, and religious beliefs. An employer who has access to this information and then decides not to hire the candidate risks being accused of making the decision for a discriminatory reason.

The best practice is for employers to avoid the temptation to request access to an applicant’s social networking sites. Otherwise, you may get more information than you intended.

TIP OF THE DAY – RECENT COLLEGE GRADS ATTRACTED TO SOCIAL MEDIA AND OTHER WORKPLACE BENEFITS

A recent survey of college students and recent college graduates conducted by Cisco, concluded that young professionals are looking beyond salary when they enter the workforce. See Cisco news release at: http://www.cisco.com/en/US/solutions/ns341/ns525/ns537/ns705/ns1120/cisco_connected_world_technology_report_chapter2_press_release.pdf

This is good news for companies that are not in a position to offer top salaries to recruit new talent. According to the Cisco study, other factors that heavily influence whether young professionals accept a position with a company – and choose to remain there – include:

  • The ability to use social media in the workplace
  • Flexibility in choosing mobile devices (iPhone, Blackberry, etc.) to use for work
  • Opportunity to work remotely some of the time, accessing work computers from their mobile device or home computer
  • Ability to blend business use and personal use of company-issued devices like smartphones, iPad, etc.

Make sure, however, that use of increased flexibility in these areas to recruit and retain employees is still tempered by reasonable policies governing the use of social media and mobile devices.

EMPLOYER ALERT – FACEBOOK FIRINGS COULD PROMPT LEGAL ACTION

Companies who fire employees for making negative comments about their jobs on a social media site could end up in hot water with the NLRB – even if the company’s employees are not unionized.

The National Labor Relations Board (“NLRB”) enforces the National Labor Relations Act, a federal law pertaining primarily to union activity, which has been around since the 1930s. In the past, courts have held that, to a limited extent, this law also protects non-union employees, in areas such as the right to have another employee present during an employee disciplinary meeting (these are called “Weingarten Rights”), and the protection of “concerted activity” – i.e. the right of employees to meet and discuss issues such as wages, benefits and workplace safety, and to approach management to discuss those issues.

Recently, the term “concerted activity” has been applied to social network postings by employees, and civil complaints have been filed and are pending before the NLRB against companies that fired employees for positing certain comments. Not all comments are protected – they have to fall within traditional definitions of concerted activity, qualifying as a discussion between employees regarding protected activities. A recent article appearing in the Chicago Tribune provides details and insights into this evolving issue. See: http://www.chicagotribune.com/business/breaking/chi-workers-fired-over-facebook-twitter-posts-turn-to-1935-labor-law-20111202,0,6526315.story

The best approach is to review your current HR policies to ensure that they do not prohibit protected “concerted activity” by employees, and obtain legal advice on this issue before you terminate an employee based on their use of social media to air complaints about a supervisor or other workplace issues.