Where they complain:
Most job-related rants are posted where employees statistically spend most of their time on the internet: Twitter, Facebook, LinkedIn, and other popular social networking sites. However, disgruntled employees also use increasingly popular job venting websites such as jobitorial.com, jobvent.com, glassdoor.com, disgruntled.com, and Australia’s nakedoffice.com. The majority of cases involving employees ranting about their employers involve employee tweets or Facebook posts.
What they complain about:

Employees complain about a wide variety of issues from working conditions such as having coffee and tea available to lunch breaks and promotion opportunities. The number one area where employees seek change is having higher salaries. Employers should create an environment where employees feel comfortable discussing salary. Remember, as mentioned below, the NLRB also protects them in that conversation-even if they do so in a public forum. Other hot topics include benefits programs (health and dental insurance, retirement programs, paid time off/vacation), over-management (too many coaches, not enough players), and pay increases based on performance rather than all employees receiving a raise no matter how they produce for the employer. Employees want to be rewarded for their production.

First Amendment/NLRA issues – what is/is not protected
A social media policy raises First Amendment free speech issues. For example, if the employer is a state actor, the comments may be afforded First Amendment protection. For private employers, the National Labor Relations Board (NLRB) has determined that certain online employee communications concerning their employer may be subject to the protections of the National Labor Relations Act (NLRA), even if the workplace is not represented by a union. Some states restrict employers from attempting to control the after-hours activities or conduct of their employees.

The NLRB has reported recently that in order to be a protected concerted activity, the employee’s online discussion must involve or affect a group of employees, not an individual worker. The latest NLRB report underscored two main points: Employer policies shouldn’t be so broad that they prohibit protected activity; and “mere gripes” usually aren’t protected if they’re not made in relation to group activity among employees. In one case, a restaurant fired two employees who had a Facebook conversation with a former employee about the restaurant’s tax withholding practices. The NLRB found that the firings were illegal, because the employees were engaging in protected concerted activity. The NLRB also found the restaurant’s Internet and blogging policy, which prohibited “inappropriate discussions,” was too broad and vague to be legal. However, in another case, the NLRB ruled that a newspaper could legally fire an employee who posted “unprofessional and inappropriate tweets” to a work-related Twitter account. In that case, the reporter used the Twitter account to criticize coworkers. The complaints were not concerted but instead involved the gripes of an individual employee. It did not involve his employment or involve employees in issues related to employment. Therefore, the posts were not protected.

With the above in mind, employers should consider the following:

• Create a system where employees can vent and discuss their frustrations in a private location in the office to avoid online public rants. Give them a safe place to voice their opinions in a constructive way. Listen to employees and make appropriate changes accordingly.
• Develop a social media policy consistent with the law that will establish clear and lawful parameters for the use of social media in the workplace. Avoid vague language such as “inappropriate language is prohibited”. Define what “inappropriate language” is. The policy should clearly state that the employer has the right to monitor the use of social media by employees. The employer should include language in the employees’ contract that outlines exactly the kind of online behavior that could lead to their dismissal. Be specific. See the NLRB approved Sample Social Media Policy on HR That Works.
• Identify the line between protected and unprotected speech and update the social media policies accordingly. While an individual online rant by one employee is generally not protected, discussions involving employment issues related to multiple employees generally is protected by the NLRA.
• Small business owners can sign up for Google Alerts so they know when their company is being talked about on the Web. SocialMention.com works the same as Google Alerts but scours social media sites for mention of the company. However, employers should think twice about patrolling the Internet in search of employees badmouthing the company. Such an action could be considered “surveillance” under the NLRA, which could be illegal. (Of course, getting caught is another thing).

While Maryland was the first state to pass a Social Media account access protection law, California now has one too and many states plan to follow. Here’s the statutory language:

SECTION 1. Chapter 2.5 (commencing with Section 980) is added to Part 3 of Division 2 of the Labor Code, to read:

Chapter 2.5. Employer Use of Social Media

980. (a) As used in this chapter, “social media” means an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, e-mail, online services or accounts, or Internet Web site profiles or locations.

(b) An employer shall not require or request an employee or applicant for employment to do any of the following: (1) Disclose a user name or password for the purpose of accessing personal social media.

(2) Access personal social media in the presence of the employer.

(3) Divulge any personal social media.

(c) Nothing in this section is intended to affect an employer’s existing rights and obligations to investigate allegations of employee misconduct or employee violation of applicable laws and regulations.

(d) Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

(e) An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.

To understand what all of that means I suggest you look at the bill analysis by both the Senate and Assembly labor committees.  Interestingly, the only opposition to the bill came from the securities and financial sector claiming it conflicted with obligations they have under Federal statutes. HR That Works Members should view the Social Media Training Module.

AB 1844 (Passed):  This bill would prohibit an employer from requiring or requesting that an employee or applicant disclose user name or password information for personal social media, or to divulge any personal social media.

Chapter 2.5. Employer Use of Social Media

980.  (a)  As used in this chapter, “social media” means an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.

(b)   An employer shall not require or request an employee or applicant for employment to do any of the following:

(1)      Disclose a username or password for the purpose of accessing personal social media.

(2)      Access personal social media in the presence of the employer.

(3)      Divulge any personal social media, except as provided in subdivision (c).

(c)    Nothing in this section shall affect an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.

(d)   Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

(e)    An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.

SB 1255 (Signed):  This bill would specify circumstances under which “injury” would be presumed to an employee as a result of an employer not providing wage statements, or providing incomplete wage statements.  Presumed injury would allow the employee to recover penalties and/or actual damage.  Presumed injury could be shown by the failure to provide a wage statement at all, or by the failure to include the employee’s name and last 4 digits of the social security number.  It could also be shown by failing to provide complete wage information, causing the employee to be unable to determine (from the statement alone) gross and net wages earned, deductions therefrom, and the name and address of the employer.

“An employee suffering injury as a result of a knowing and intentional failure by an employer to comply with subdivision (a) is entitled to recover the greater of all actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not to exceed an aggregate penalty of four thousand dollars ($4,000), and is entitled to an award of costs and reasonable attorney’s fees.

AB 1744 (Signed, effective July 1, 2013):   This bill would require temporary services employers to include additional information on itemized wage statements for employees, including the rate of pay for each assignment, the name and address of the entity that secured the services and total hours worked for each entity.

AB 2103 (Signed): Payment of a fixed salary to a nonexempt employee shall be deemed to provide compensation only for the employee’s regular, non-overtime hours, notwithstanding any private agreement to the contrary.

AB 2674 (Signed):  This bill would amend section 1198.5 of the Labor Code relating to employee rights to inspect personnel files.  The bill would require employers to maintain employee personnel files for at least 3 years following termination of employment, and to permit current and former employees (or their designated representatives) to inspect and copy personnel records, within 30 days of a request to do so by the employee.  The bill specifies that an employer is not required to comply with more than 50 requests for copies of personnel records by a representative of employee(s) in one calendar month.

Resources:

Labor Commission www.dir.ca.gov
Dept. of Fair Employment and Housing www.dfeh.ca.gov
EDD www.edd.ca.gov

And of course, HR That Works!

NLRB Acting General Counsel Lafe Solomon today issued a third report on social media cases brought to the agency, this time focusing exclusively on policies governing the use of social media by employees.

The Operations Management Memo details seven cases involving such policies. In six cases, the General Counsel’s office found some provisions of the employer’s social media policy to be lawful. In the seventh case, the entire policy was found to be lawful.

Provisions are found to be unlawful when they interfere with the rights of employees under the National Labor Relations Act, such as the right to discuss wages and working conditions with co-workers.

“I hope that this report, with its specific examples of various employer policies and rules, will provide additional guidance in this area,” Mr. Solomon said in releasing the memo. Two previous memos on social media cases, which involved discharges based on Facebook posts, issued in January 2012 and in August 2011.

Note: we will review this memo and do an analysis on it by next week!

The NLRB did it again. One has to wonder if these folks have ever had to run a business. You will note that many of the policies deemed illegal were drafted by high-end counsel at major corporations who are undoubtedly aware of employee’s NLRA Section 7 and 8 rights. But what do they know? The NLRB is undercutting every level of decency corporations try to establish. It clearly has nothing to do with common sense or “real” workers’ rights, it’s simply a political football. Read it yourself and tell me you don’t feel that way too. Call your boss an asshole, trash the company brand, disclose confidential info, get fired for it and the NLRB will put you back to work! Really? And this is what we pay taxes to a broke government for?

P.S. Of course, this is my opinion only. While it may be shared by many, it is not shared by all.  Here’s a fact – I represented employees in litigation for 17 years of a short life, so I don’t want to hear about supporting some right wing agenda. I’m a pragmatist and this is flat out nonsense. You will also note they don’t add the facts or names of these cases because the actual conduct of the employees involved would be hard for most to stomach.

Guidelines

If the social media policy does not explicitly restrict protected activities, it will only violate Section 8(a)(1) upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

Rules that are ambiguous as to their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights, are unlawful (which is where most of these policies fail). In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity, are not unlawful.

Reality is, none of these employees ever studies these rules or even thinks about them before they engage in their “protected” conduct.  But because of the remote chance it may actually “chill” conduct, decency goes out the window.

Given the above guidelines, the NRLB found plenty of polices wanting. Rather than waste your time summarizing all the things you can’t do I’ll focus on identifying what they said you can do. If you want to make yourself feel ill you can read the entire memo at http://www.nlrb.gov/news/acting-general-counsel-releases-report-employer-social-media-policies I have given up on trying to modify our policy for the umpteenth time. To be on the 100% safe side you can simply use the sample policy that the NLRB said is OK below.

Last note: It has been my approach to involve employees in creating these policies so they can be “self-enforced” and not viewed as some top down control document. Since the end result of such a common sense approach may in fact violate NLRB guidelines, the safest best is to go with their sample policy.

Sample Social Media Policy

At [Employer], we understand that social media can be a fun and rewarding way to share your life and opinions with family, friends and co-workers around the world. However, use of social media also presents certain risks and carries with it certain responsibilities. To assist you in making responsible decisions about your use of social media, we have established these guidelines for appropriate use of social media.

This policy applies to all associates who work for [Employer], or one of its subsidiary companies in the United States ([Employer]). Managers and supervisors should use the supplemental Social Media Management Guidelines for additional guidance in administering the policy.

Guidelines
In the rapidly expanding world of electronic communication, social media can mean many things. Social media includes all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated with [Employer], as well as any other form of electronic communication.

The same principles and guidelines found in [Employer] policies and three basic beliefs apply to your activities online. Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow associates or otherwise adversely affects members, customers, suppliers, people who work on behalf of [Employer] or [Employer’s] legitimate business interests may result in disciplinary action up to and including termination.

Know and follow the rules
Carefully read these guidelines, the [Employer] Statement of Ethics Policy, the [Employer] Information Policy and the Discrimination & Harassment Prevention Policy, and ensure your postings are consistent with these policies. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.

Be respectful
Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of [Employer]. Also, keep in mind that you are more likely to resolved work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.

Be honest and accurate
Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered.

Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers, people working on behalf of [Employer] or competitors.

Post only appropriate and respectful content

• Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.
• Respect financial disclosure laws. It is illegal to communicate or give a “tip” on inside information to others so that they may buy or sell stocks or securities. Such online conduct may also violate the Insider Trading Policy.
• Do not create a link from your blog, website or other social networking site to a [Employer] website without identifying yourself as a [Employer] associate.
• Express only your personal opinions. Never represent yourself as a spokesperson for [Employer]. If [Employer] is a subject of the content you are creating, be clear and open about the fact that you are an associate and make it clear that your views do not represent those of [Employer], fellow associates, members, customers, suppliers or people working on behalf of [Employer]. If you do publish a blog or post online related to the work you do or subjects associated with [Employer], make it clear that you are not speaking on behalf of [Employer]. It is best to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the views of [Employer].”

Using social media at work
Refrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company Equipment Policy.

Do not use [Employer] email addresses to register on social networks, blogs or other online tools utilized for personal use.

Retaliation is prohibited
[Employer] prohibits taking negative action against any associate for reporting a possible deviation from this policy or for cooperating in an investigation. Any associate who retaliates against another associate for reporting a possible deviation from this policy or for cooperating in an investigation will be subject to disciplinary action, up to and including termination.

Be Cautious
Develop a healthy suspicion. Don’t let anyone trick you into disclosing confidential information. Be suspicious if asked to ignore identification procedures.

 Media contacts
Associates should not speak to the media on [Employer’s] behalf without contacting the Corporate Affairs Department. All media inquiries should be directed to them.

For more information
If you have questions or need further guidance, please contact your HR representative.

According to the NLRB memo here are some more “OK” provisions:

• Confidentiality re information directly or indirectly related to the safety performance of [Employer] systems or components for vehicles;
• Confidentiality re [Employer] Secret, Confidential or Attorney-Client Privileged information;
• “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers.”
• “statements which are slanderous or detrimental to the company” that appeared on a list of prohibited conduct including “sexual or racial harassment” and “sabotage”
• No unauthorized postings: Users may not post anything on the Internet in the name of [Employer] or in a manner that could reasonably be attributed to [Employer] without prior written authorization from the President or the President’s designated agent.
• A prohibition on representing “any opinion or statement as the policy or view of the [Employer] or of any individual in their capacity as an employee or otherwise on behalf of [Employer].”

On January 25th the NLRB issued its second lengthy memo on Social Media use by employees. Like the first report, it is disjointed, poorly organized, and leaves employers with more questions than answers. In this 25-minute video Don Phin goes over the learning that can be gleaned from the report. This is a video that applies to every employer!

Employers are challenged by the fact that many people they seek to hire, have hired, or no longer work for them have engaged in puffery or outright deceit on their LinkedIn and similar social media pages. A company that knows or should have known of this deception can be held vicariously liable to someone who relies on this content to their detriment. The amount of misrepresentation that can come from a desperate current job seeker is downright scary! For example, in one case a former employee was sued for trademark infringement and interference with prospective business relations because he inaccurately alleged that he was the owner of the company at which he previously worked.

What’s an employer to do? Treat misrepresentations made on social media sites as you would any other misrepresentation made by a prospective employee, current employee, or former one. First of all, don’t hire liars. If you find somebody lying on their LinkedIn page or on their résumé, you don’t hire them, no matter what their “story” is. If you find out after you hired them that they misrepresented who they were, then you have the right to terminate them. This right is something you should place in your job applications and other offer letter type documents. See the Sample Job Application and Sample Offer Letter on HR That Works.

If somebody generates the puffery while in your employ, simply ask them to correct it and make sure they don’t do it again. If they knowingly misrepresent themselves or the company then at a minimum document your discipline and consider possible termination. Monitor the situation to make sure the fix occurs and no third party was affected by it.

Lastly, if it’s a former employee, you can certainly begin by sending them a certified letter asking them to remove the inaccuracies and if that doesn’t work, consider getting your attorney involved. The cautionary note here is that you may stoke a fire where this former employee then reacts by blasting you in social media and, in the end, you wished you had never messed with it. If you haven’t worked with your workforce to produce a social media policy that makes sense, spend some time on the Social Media Training Module on HR That Works.

A National Labor Relations Board Administrative Law Judge ruled on September 28th, 2011 that Knauz BMW, a Chicago area car dealership, did not wrongfully terminate an employee for his Facebook postings. However, Judge Joel P. Biblowitz also found that the dealership had an overly broad employee policy, and ordered posting of a notice informing employees of their right to engage in protected concerted activity.

The case involved the employee’s posting to Facebook of two incidents, one involving a sales event and another involving an accident at an adjoining dealership. In the first, the employee, a car salesman, and coworkers were unhappy with the quality of food and beverages at a dealership event promoting a new BMW model. Though the salespeople did not directly complain to their employer that the food offerings could affect their commissions, they discussed with each other that their sales could suffer as a result. Following the event, one salesman posted photos and commentary on his Facebook page critical that only hot dogs and bottled water were being offered to customers. Other employees had access to and commented on the Facebook page.

On the same day, the salesman posted photos of an accident that had occurred earlier involving a vehicle from an adjacent dealership that was accidently driven into a pond. Both dealerships are part of the same ownership group. Judge Biblowitz found that while the postings involving the sales event and the subsequent exchange of comments with other employees was protected activity, the postings involving the accident were not. Further, the judge found that the salesman was terminated for the accident postings, and therefore not protected under the National Labor Relations Act.

Regarding the employee policy, Judge Biblowitz found that certain paragraphs were overly broad and tended to chill employee rights by prohibiting employees from participating in interviews with or answering inquiries concerning employees. Though the employer had changed the policy prior to the hearing, the judge ordered that a notice be posted at the dealership informing employees of their right to engage in protected concerted activity.

Only yesterday we posted the warning re how the NLRB is deciding these cases and now another one for the books!

According to the NLRB press release:

In the first ruling of its kind, a National Labor Relations Board Administrative Law Judge has found that a Buffalo nonprofit organization unlawfully discharged five employees after they posted comments on Facebook concerning working conditions, including work load and staffing issues.  

The NLRB has received an increasing number of charges related to social media in the past year, as that means of communication grows in popularity. The Office of General Counsel issued a report last month outlining some of the cases. This is the first case involving Facebook to have resulted in an ALJ decision following a hearing.

To read the rest go to http://www.nlrb.gov/news/administrative-law-judge-finds-new-york-nonprofit-unlawfully-discharged-employees-following-fac.

To read the case itself go to http://mynlrb.nlrb.gov/link/document.aspx/09031d4580622877

Watch Don’s 35-minute video on what you must know about a recent NLRB Memo on Social Media today! HR That Works members can see the updated Social Media Policy and Special Report in the Social Media Training Module.