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.”

Info You Can Use: Tools To Chart Your Organizational Impact

A partnership of GuideStar USA, Independent Sector and BBB Wise Giving Alliance has created a free online tool, Charting Impact, which non-profits and foundations can use to assess themselves and help in “telling the story of your progress in an accessible, concise way. People want to help you make a difference – through donations, volunteering, and more – but often struggle to find a succinct, consistent resource that clarifies what nonprofits want to achieve and what they have already accomplished.”

The process has participants answer five questions about their organization to help gauge where they stand. Completing the report is meant to complement rather than replace program reviews and strategic planning. The final assessments appear on the site which is intended to be a central resource for those wishing to support a non-profit to obtain more information and assure themselves that the organization has a self-evaluative process in place.

One thing I found very interesting upon viewing some of the sample reports is that the process involves a CEO review, a Board review and a Stakeholder review and informs the reader if those groups have read and signed off on the report. Though the organization can manipulate the results by providing the contact information for stakeholders they know will never be critical of them, the anonymity afforded the reviewers provides an opportunity for the organization to receive some valuable feedback about themselves.

Charting Impact is still pretty new so there aren’t a lot of people who have completed the process. It will be interesting to see how prevalent its use as a resource will be. It already integrates some of the information on organizations GuideStar collects and fulfills a part of BBB Wise Giving Alliance’s charity certification process. If the process is viewed as credible, there is a potential that foundations and funders may require organizations to engage in it to receive a certain level of funding.

It would be unfortunate if Charting Impact became too much a gold standard that individuals wouldn’t make even small donations to organizations that hadn’t engaged in this introspection. I don’t necessarily see that happening any time soon. It would be nice amid all the stories we read about excessive salaries for non-profit executives and mismanagement and corruption to have a measure that provided the general public with confidence about organizational effectiveness.

Stuff To Ponder: Ticket Office Openness Vs. Security

Currently I am involved in talking with architects to plan a renovation for our theatre. Part of this will involve razing and moving our ticket office. In the course of other theatre design projects with which I have been involved, as well as those related to me by colleagues, there seems to be a desire to have a more open and friendly ticket acquisition experience for audiences.

Since people are purchasing online and using credit cards to purchase tickets, the thought is that the reinforced bank teller window (an image recently invoked by Rocco Landesman) can give way to a more open concierge desk set up with an aperture to a secure backroom available for deposit of cash receipts.

Thinking this might be an option we should consider, I emailed the theatrical architect with whom the lead architect is working. The fact our ticket office is located outside rather than in our lobby adds a little twist to the concept. My concern was mostly with how to secure the desk area and keep it clean when we aren’t using it without resorting to bulky contraptions or unattractive steel roll up doors. Though sheltered from the rain, we would have to figure a way to avoid having money fly away in a breeze. I thought with some good design and procedures, we could overcome these hurdles and provide a more welcoming atmosphere for our patrons.

The problem is that while the move toward cash-less transactions enables us to move toward a more open and friendly experience, thieves are making corresponding changes in the tactics they use to exploit the new transaction formats. We may end up right back behind the reinforced teller windows again before too long.

With his permission, I am sharing part of the response I received from architect Paul Luntsford of PLA Designs.

“Due to the increasing problem with skimmers and RFID scanners, debit and credit card transactions are moving to the secure and controlled window. By the way, this skimmer/RFID scanner thing is really getting bad. We went to see Les Mis tour show last Friday at our huge, union run, city-owned 3000 seat theater. I used the ATM in the lobby to get some dough to buy junk during intermission. That night, or technically the next morning at 3AM, my debit card was used online at the Apple store to attempt a $1 test purchase by some unsavory character who had managed to compromise my RFID data from my card when I used the ATM in the lobby! So, you need to consider that all electronic transactions happen behind a window, and that window has an embedded wire mesh that is bonded to ground and acts like a Faraday shield to prevent capture of RFID data when the card is processed by one of YOUR people.”

While the credit card company may be at fault for not properly encrypting information, that fact will be of little comfort if people start to associate your brightly lit lobby with a dimly lit alleyway in a bad neighborhood where they may be preyed upon. As security of the cards improves, (and hopefully theft techniques lag), we can hopefully look to maintaining a more open transaction environment. If not, along with good cash handling procedures, you may end up having to train employees on safe credit card handling procedures like not passing the card back out side the Faraday cage without replacing it in a protective sleeve.

Info You Can Use: Correct Organization Of Personnel Files

Hat tip to Emily Chan at Non Profit Law blog for sharing a link to a Blue Avocado piece on how personnel files should be maintained. More specifically, what information should not be stored in a personnel file, if retained at all, and what should be kept in separate files.

Some of the prohibitions made sense given the need to maintain privacy of medical records and the fact that some documents must be released to federal inspection and it is inappropriate to provide access to the details of an entire employment history. It makes sense that nothing should be placed in the file that employees aren’t aware of.

There are some other factors I don’t know I would have ever considered when setting up a system of personnel records.

Following are the most important items to exclude:

* Any writing regarding the employee’s performance that the employee has not seen should not be in the file. For example, while the performance evaluation that was presented to the employee should be in there, a complaint memo from a department manager about an error the employee made that was never shown to the employee should not.

* Working notes or logs that a supervisor has kept for her own benefit, usually to assist in the drafting of a performance evaluation. The notes should be destroyed after documenting anything of importance in the annual performance evaluation.

* Any medical information (including drug testing information) about the employee from any source should never be in the employee’s personnel file, but rather in a separate, more restricted confidential medical file. This separate medical file could also include any medical-related information such as documents related to Workers’ Compensation, FMLA and ADA.

* Complaints or investigation reports (harassment, discrimination, ethics, licensing etc.). Any complaint about an employee that is subject to an investigation should not be in the employee’s personnel file, but in a separate complaint file. For example, if an employee is accused of sexual harassment, the only thing that should be lodged in the personnel file is any disciplinary action taken against the employee or a substantiated report of wrongdoing — but not the original complaint or investigation notes.

* These items also should not be kept in a personnel file, but in separate, confidential files:
o Hiring Documents, such as letters of reference, background investigation reports, or I-9s
o EEO Statistical Information for the EEO-1 Report
o Payroll records

In short, to manage all of this personnel information we suggest four sets of files:

1. A personnel file for each employee
2. A separate medical file for each employee
3. One folder that has Forms I-9 for all employees
4. A file (or set of files) for all employee payroll records

Ellen Aldridge, who wrote the Blue Avocado piece, also provides a downloadable check list of items to include. She follows the material cited above with information about what things employees can add to their files, how long you need to keep information, how to store the files and suggested policies and protocol for accessing and reviewing files.

The one thing I questioned, (literally-I ask about it in the comments section of the article), is the suggestion that notes a supervisor has been keeping to base a performance evaluation on be destroyed. The supervisor might be documenting incidents of absence, mishandling of cash or even episodes when customers praised an employee to a supervisor or were witnessed using exceptional judgment and initiative. Wouldn’t you want to retain this evidence if the employee challenged a poor evaluation or to defend the employee against potential layoffs?

There hasn’t been a response to my comment as of publication time. Perhaps the the advice will be to formally include these records as part of the evaluation and the destruction advice refers to informal handwritten notes versus a spreadsheet the supervisor has been maintaining.

If anyone has insight or wants to share their own best practices, I would be interested to learn the answers. My guess is that a modified version of these practices should be applied to volunteer records as well.