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Info You Can Use: You Tweeted What About Me?!

So after my post a couple weeks ago about why it is bad in a legal sense to have a restrictive social media policy, I am sure some of you have been wondering under what circumstances you can actually discipline someone for what they post online.

Well thanks to a piece on Forbes website, we have an answer (and hat tip to Gene Takagi)

As I had mentioned in my earlier entry, you can’t forbid, and therefore punish, any attempt to organize employees in a discussion about employment conditions. Under labor law, this is termed “protected concerted activity.” If a person is speaking for a group of employees or attempting to organize a discussion among employees, it is protected.

However, there are some tricky nuances to this and a link on the Forbes article to a National Labor Relations Board report, “Report Concerning Social Media Cases,” delves into the matter and presents specific cases to explain why the employee was or was not protected by the law. As Kashmir Hill, the author of the Forbes article notes, it is actually pretty easy and interesting to read for a government document.

My read is that with the current state of social media it may be fairly difficult to fire someone for complaining about work conditions. Essentially, if other employees chime in either on or off line to agree that an employer is a jerk for making employees work under certain conditions, the speech is protected as representing a group complaint. If other employees just comment that they are sorry to hear a situation upset the poster, then the poster may not be speaking on behalf of other employees.

It is only when a comment passes a certain threshold where a person is wishing violence upon people or making statements which are maliciously false that protection of representing a group complaint may not apply. However, being called a power-hungry, martinet jackass does not meet the standard for maliciously false. Suggesting a restaurant buys rat dropping to make their ground beef go further probably would.

Complaints that are clearly representative of an individual’s opinion aren’t protected, especially if they do not invite or receive the agreement of other employees. The same with complaints about the job which are not terms and conditions of employment like saying your store gets the ugliest customers in town.

One interesting fact that came up in a number of the NLRB case studies is that you can not have a blanket policy prohibiting people from posting pictures of themselves in company uniform or in connection with the company logo. ”

“…Employer’s logos or photographs of the Employer’s stores would restrain an employee from engaging in protected activity. For example, an employee could not post pictures of employees carrying a picket sign depicting the Employer’s name, peacefully handbill in front of a store, or wear a t-shirt portraying the Employer’s logo in connection with a protest involving terms and conditions of employment.”

The NLRB documents didn’t say it outright, but presumably you could fire someone if they posted a picture of themselves drunk in uniform at a strip club or urinating on your corporate logo. Though I have no idea if a number of employees urinating would be considered a group cause or not.

Another part of the NRLB document I found useful was two case studies starting on page 19 that first discussed a company’s social media policy that they considered to be too broad. In the second case, they found the policy was lawful but the other prohibitions were too broad. Finally, there was a case where a company’s policy restricting employees’ contact with the media was deemed lawful.

I felt all three were very useful because they all contained rules that any of us might include in our policies. In the first two cases, it is good to know what types of language one should keep out of policies. The last case included restrictions on media contact out of a desire to have one voice speak for the organization. Again, a situation for which many organizations strive.

“…we determined that a policy that stated that “the company will respond to the news media in a timely and professional manner only through the designated spokespersons” could not be read as “a blanket prohibition” against all employee contact with the media. Additional language in the rule referring to “crisis situations” and ensuring “timely and professional” response to media inquiries further clarified that the rule was not meant to apply to Section 7 activities.

Similarly, we concluded here that the Employer’s media policy repeatedly stated that the purpose of the policy was to ensure that only one person spoke for the company. Although employees were instructed to answer all media/reporter questions in a particular way, the required responses did not convey the impression that employees could not speak out on their terms and conditions of employment.”

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Info You Can Use: The “No Social Media Policy” Social Media Policy

Hat tip to Rosetta Thurman. To paraphrase Thoreau (or The United States Magazine and Democratic Review), apparently the social media policy which is best governs least.

According to a piece on the HR Examiner by Heather Bussing, applying a light hand when creating a social media policy will actually minimize your exposure to legal liability for something your employee writes.

“If you have a comprehensive social media policy that dictates what can and cannot be discussed, you will have to pay someone to monitor what is being said, demand that inappropriate posts come down and discipline when the edicts are violated. How much time, money and energy is this really worth?

Under agency law, if you are directing the conduct of employees in social media, the company will be liable for everything that is said. To the extent something said is defamatory, violates a nondisclosure agreement or just pisses someone off, a comprehensive social media policy is the best way to get the company named in the lawsuit.

If you are not controlling it, then the company generally will not be liable for things said and done in employees’ personal accounts. This is because the employees are not acting in the course of their employment and the employer is not controlling or implicitly approving the actions of its employees. And if there is no deep pocket to sue, the chance of a lawsuit getting filed at all is greatly diminished.”

Having employees make a disclaimer that what they say doesn’t reflect the opinion of the employer can cause someone to investigate whether the employer is closely monitoring what is being said and taking disciplinary action. If this is so then the case can be made that the employer was guiding the content or was aware of the content and made a decision whether to act upon it. The speed and degree to which the employer acted can be used as a basis of arguing approval of the content.

You can also run afoul free speech and right to organize if your policy is too restrictive as well as violate whistle-blower and non-retaliatory protections.

“The National Labor Relations Act protects employees from retaliation by an employer for discussing wages, hours or working conditions. These NLRA protections apply whether or not your company has a union, because they relate to “organizing” or pre-union actions.

The bottom line is that a social media policy cannot prohibit an employee from saying bad things about what it is like to work at your company. Protected expressions include being critical of the bosses, the customers or the stupid signs in the kitchen.”

If you are closely monitoring someone’s personal social media accounts you might be violating rights to privacy and open yourself to hacking charges if you gain access to and use passwords. Monitoring personal social media could lead to a wrongful termination action if it was discovered that you were aware of personal details that might place a burden on the company and moved to fire or harass them into leaving.

And of course, having a strict social media policy can be bad for your public image if it appears you are dictating what is being said rather than allowing for spontaneous interactions.

The article doesn’t really address how constrained you are in acting upon things employees may post on social media sites. People may have protected free speech but there is a difference between getting drunk and telling everyone in the bar that your boss has an unmentionable relationship with farm animals and getting drunk, pulling out your phone and posting the same thing to 5000 followers. That still may be protected, but at some point the scale of people receiving the message is going to be great enough that a business is justified in whatever action they may take.

Bussing does discuss in what situations it is acceptable to monitor social media accounts and to what degree it should be done. As in most things, the best social media policy is preparation and education. Employees should be taught what sort of activity is professional, how sharing certain tidbits of information can violate confidentiality and what opinions may be considered defamatory.

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Stuff To Ponder: Social Media Policies And Arts Orgs

According to the Wall Street Journal, the New York City Ballet is becoming one of the first major performing arts groups to create a social media policy due to some impolitic tweets by one of their dancers. The proposed policy would:

“…require dancers to include a disclaimer specifying that their comments are not employer-sanctioned, according to a copy of a draft reviewed by The Wall Street Journal.

It would also ban them from disclosing another dancer’s injury or illness, and from posting photographs of company events, or of “persons engaged in New York City Ballet business without their consent.”

“Additionally, in order to protect its interests, NYCB reserves the right to monitor…postings that are available to the general public or those that are not privacy-protected about the company, its employees and its activities,” the draft says.”

According to the article, the union representing the dancers doesn’t see a need for a policy. But as many other arts management bloggers (and probably not a few lawyers) have written, it is good to have a policy of some sort and make sure everyone is aware of it.

Even if it is a very relaxed policy, you should have at least engaged in a decision making process about what your approach will be, what place social media will have in your organizational goals, how social media practices mesh with your corporate culture and what possible consequences may arise for your company should people reveal information or make offensive statements.

As I read the City Ballet’s policy I think some of it may be a little overly protective. I was reminded as I often am, of the Chris Lavin article about art and sports that I wrote about in one of my first blog posts. Specifically, I am recalling his comments about how performing arts organizations’ approach to providing access was “like a cross between the Kremlin and the Vatican.”

We read about athlete injuries all the time. Is it a trade secret that dancers sustain injuries? We hear about people performing while they are ravaged by sickness. Heck, the one phrase familiar to people who aren’t really interested in the arts at all is, “the show must go on.” It is almost a foregone conclusion that people will soldier through pain and sickness. It isn’t that a dancer’s career is any more precarious than an athlete’s if news of chronic injuries becomes public. Though granted, the athlete has often accumulated a fair bit more money by that time.

The bit in their policy about reserving the right to monitor with the unspoken “and take action we deem appropriate” hanging there may appear to be counter to efforts to use social media to broaden the City Ballet’s appeal. The real proof though is in how great their degree of tolerance for what is posted and how strictly they enforce consequences. A phrase like that is almost a given in a social media policy for most companies, a fact the Wall Street journal acknowledges. It lets people know you will be watching so no one can claim ignorance.

The tricky part though is in uniformly applying whatever criteria your organization has about what subjects and language are permissible. If a person is fired for saying something they feel an earlier incident that went unpunished created a precedent for, they may have a basis for claiming they were improperly dismissed.

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Five Rs of Success

So I am beginning to think that adding the Non-Profit Law Blog to my Google reader was one of the best things I have done in terms of keeping myself informed on stuff to blog about. Not to send everyone abandoning my blog to hang out there, but they offer a lot of worthwhile information. (In case you haven’t been reading my blog for very long.) Last week Emily Chan did an entry on social media policy resources for non-profits.

Among the links she lists are pieces by Beth Kanter, one of which deals with the question of whether your organization needs a social media policy. Chan also links to a piece by Sharlyn Lauby on Mashable about 10 things that should appear in your social media policy. I found both of these helpful, but there are a number of other good links Emily Chan lists and then Beth Kanter has a slew of other related links in her article.

Kanter’s article has some good links for developing policy, case studies and cautionary tales about how posting the wrong sentiments and pictures can get you fired. The one that really caught my eye because of its constructive approach was a slide show by Sacha Chua, “The Gen Y Guide to Web 2.0 at Work” Chua created a hand drawn slide show aimed at Gen Yers which warns them about treating co-workers like college buddies and not applying themselves to their work.

Her tips for success at work are to Read, Write, Reach Out, Rock and Repeat: Read as much as you can; Write and Share What You Have Learned; Reach Out to others (help, get mentors, as questions); Rock at what you do and work at strengthening your weakness; and of course, repeat all those steps.

It’s more exciting and informative with her illustrations, trust me.

I don’t think it takes much effort to realize these are good guidelines for every worker, regardless of what generation they have been categorized in. I especially take it to heart because like Chua, my blog helped me get my job. While I do share links that are of interest, I don’t do it as often I want to because I don’t want to be that guy who sends a lot of links that have little relevance to the recipient. I am thinking maybe I don’t need to send more links as expand the list of those to whom I send really relevant ones.

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