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Companies Grapple With Viral Vents

December 15, 2010
Related Topics: Miscellaneous Legal Issues, Internet, Featured Article

When a Chicago-area financial systems analyst had a disagreement with her supervisor in May, she did what many employees do after a tough day at the office—she vented to friends. But instead of unloading over a beer or the proverbial water cooler, she expressed her frustration on her Facebook page—a decision that resulted in a reprimand for her and four co-workers and sparked an office debate over what employees can and cannot say online.

That discussion was rekindled recently after the National Labor Relations Board filed a complaint in late October against a company that fired a woman for bad mouthing her boss on Facebook. The news prompted the Chicago analyst, who asked not to be identified for fear of reprisal, to post a comment on the NLRB’s Facebook page urging employees who have been similarly disciplined to speak out. “If I had a rough day at work, I can’t post that on Facebook?” she said in an interview. “According to our HR representative, the answer is no. But as long as the company or supervisor is not specifically named, I don’t believe the company has a right to control what I choose to say on Facebook on my own time.”

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The NLRB case has many employees and employers wondering what crosses the line when it comes to posting comments on social networks like Facebook, LinkedIn and Twitter, especially when comments are made during off-hours and on an employee’s personal electronic device. More companies are adopting social media policies to regulate Internet use at work, but what employees post during their personal time and what they can say about their employers are the harder issues, says employment lawyer Betty Graumlich, who is a partner at Reed Smith in Richmond, Virginia. “It’s going to be an evolving area of the law. There have not been a lot of these cases. Until this complaint is adjudicated, we just don’t have clear direction.”

The NLRB complaint, which was filed in late October, accuses American Medical Response of Connecticut, an ambulance service, of illegally firing emergency medical technician Dawnmarie Souza, after she criticized her supervisor on Facebook. The company said she violated a policy that prohibits employees from depicting the company “in any way” on social media sites on which they post a picture of themselves. According to the National Labor Relations Act of 1935, which gives workers the right to form unions, employers cannot punish people for discussing working conditions, regardless of whether they are in a union. The board says the company’s social media policy is “overly broad” and improperly limits employees’ rights to talk about work. An NLRB administrative law judge is scheduled to hear the case on Jan. 25, 2011. The board is an independent federal agency with authority over most private sector employers.

This is the first NLRB complaint involving an employee terminated for comments made on a social media site, according to a statement by the board’s acting general counsel. But it isn’t the first time the NLRB has tackled the issue. In December 2009, the board issued a nonbinding memorandum examining a similar social media policy at Sears Holdings Corp.

The company issued its policy in June 2009 because of “some highly publicized examples of companies whose reputations have suffered as a result of inappropriate conduct (whether intentional or unintentional) by their employees in social media,” according to the memorandum. Among the topics listed as off-limits to employee discussions on social media sites: “disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy and business prospects.” The board determined that the policy did not restrict employee speech as outlined in the National Labor Relations Act.

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While the social media policies at Sears and American Medical Response are similar, Graumlich points out that the makeup of the five-member NLRB is not the same. Since the Sears memorandum was issued, President Barack Obama has appointed two new members shifting the board’s political direction. Graumlich says it’s unclear how a more liberal board will vote. “I anticipate that a board appointed by Obama will be more likely to be protective of employee rights,” she says.

While the area may be legally murky, more employees are finding themselves in hot water over social media slip-ups.

In a 2010 survey of 261 companies by Proofpoint Inc., an e-mail security and compliance vendor based in Sunnyvale, California, 20 percent of respondents reported taking disciplinary action against an employee for violating social media policy, up from 10 percent the year before.

“It’s a huge increase,” says Keith Crosley, Proofpoint’s director of market development. He says that, in part, the increase reflects the growing number of companies that are adopting social media policies, a trend that is likely to continue. Nearly half of the respondents reported banning the use of Facebook, YouTube and Twitter at work and nearly one-third prohibit LinkedIn.

But some employers are taking the opposite approach and embracing social media. When Patti Temple Rocks became chief reputation officer in February for Chicago-based Leo Burnett Worldwide, one of the first things she did was revise the ad agency’s social media policy to encourage employees to post on the company’s blogs and Facebook pages.

“How do you manage your company’s reputation online? Our best defense is having our own people participating in these discussions,” Rocks says. Rather than telling employees what they can and can’t say, she says Leo Burnett tries “to communicate a sense of tone. We don’t say that you’re not allowed to disparage your boss. We just tell employees that if you wouldn’t say it in a place where you can be overheard by strangers, you shouldn’t say it online.” The only hard and fast rule, according to Rocks, is that employees “can’t share any proprietary information.”

The same goes at Boeing Co., which doesn’t ban social media sites in the workplace—as long as employees use them on their own time. The company does advise employees to keep their comments about the workplace “appropriate and general,” says Boeing spokesman Todd Blecher. The policy focuses on safeguarding business information and doesn’t specifically address airing workplace grievances.

“It reminds people that we have procedures to deal with grievances,” Blecher says. “You shouldn’t be registering your first complaint via social media. There are other ways of addressing it.” Should employees post their complaints online, Blecher says he’s not sure how Boeing would handle the situation. “I can’t see immediately terminating someone if they did go on Facebook to complain. I think we would look more harshly, more quickly at an employee releasing proprietary information than an employee who went on Twitter and said, ‘My boss is a you know what.’ ”

The key to a successful social media policy is helping “employees understand what these tools can do and how they should and shouldn’t be used,” says Michael Rudnick, a national leader at Towers Watson & Co., an HR consulting firm. “It’s no different than parents saying to their teenager, ‘The stuff you put on Facebook will come back to haunt you in 10 years when you’re looking for a job.’ You wouldn’t scream expletives about your boss, so don’t post it.”

Workforce Management, December 2010, p. 6, 8 -- Subscribe Now!

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