In Texas, You’re On Your Own

I continue to be amazed at the repressive nature of a great deal of discourse online about the ‘obvious’ and ‘inherent’ need for individuals to self-censor online unless they are willing to lose their jobs.

The newest example is the following piece by Jon Hyman, who has a lot of badges on his site proclaiming his status as a top 25 this and a top 100 that. And - surprise - he is a lawyer.

After mentioning the brouhaha arising from Voula Papachristou’s racist remarks that led to her being tossed off the Greek Olympic team last week, Hyman goes on to make a sweeping overgeneralization, basically asserting that employers can fire workers far saying anything that annoys them:

Jon Hyman, Does your social media policy educate about being “profersonal?”

If an employee doesn’t want something they say online to affect their employment, they shouldn’t post it. We can debate whether an employee should lose his or her job for something non-work-related he or she posts on his or her personal time. If, however, someone can connect an employee to his or her place of employment through an online profile, what is posted becomes fair game for an employment decision.

The takeaway might simply be that employers remind their employees to “be professional” online, and that businesses will hold employees accountable for what they post that could cast the company in a bad light.

Leaving aside how vague this all is — what is a ‘bad light’ defined as? — what about the basic premises of constitutionally protected freedoms of free speech? If individuals can be coerced from taking controversial stands by conservative employers, aren’t we ceding control of political discourse to business interests? 

The First Amendment is a check only on the government, that the government will take no action to prohibit free speech. But this doesn’t extend to other employers, and as a result, employers often act as if they can fire an employee for any sort of public stance, online or in public.

In some states — California, New York, and Washington DC — there are laws barring discrimination based on political activities or affiliations. Colorado and North Dakota go further, prohibiting discrimination based on ‘lawful conduct outside of work.’ Some cities have similar rules (Seattle, Lansing MI and Madison WI).

It’s maddening that we do not have similar national laws protecting our freedoms.

Anyway, Hyman does continue with his screed, expressing his surprise that the National Labor Relations Board supports the National Labor Relations Act (NLRA):

Amazingly, however, the NLRB might take issue with such a policy.

In his latest missive on workplace social media policies, NLRB Acting General Counsel Lafe Solomon passed judgment on the following neutral provision in an employer’s social media policy:

Remember to communicate in a professional tone…. This includes not only the obvious (no ethnic slurs, personal insults, obscenity, etc.) but also proper consideration of privacy and topics that may be considered objectionable or inflammatory—such as politics and religion.

Mr. Solomon concluded that such a policy, which merely reminds employees “to communicate in a professional tone,” unlawfully restricts employees’ rights to engage in protected concerted activity:

We found this rule unlawful…. [R]eminding employees to communicate in a “professional tone,” the overall thrust of this rule is to caution employees against online discussions that could become heated or controversial. Discussions about working conditions or unionism have the potential to become just as heated or controversial as discussions about politics and religion.

Hyman leaves out the most important part of this discussion, which is that the NLRA prohibits employers from ‘chilling’ the workplace in regard to protected ‘concerted activities’, specifically, discussions about workplace safety, conditions, and collective bargaining. So vague policy descriptions that employees should be ‘professional’ and to avoid saying things that ‘reflect badly’ on an employer are unenforceable, and firing employees who — for example — complain about unsafe working conditions is illegal.

Hyman then concludes with the most blatantly reactionary summing up imaginable:

What’s the real lesson here? Social media is an evolving communication tool. Employees have not yet figured out what it means to be “profersonal.” Employees need to realize that anything they say online can impact their professional persona, and that every negative or offensive statement could lead to discipline or termination (even if employers can overreact in these situations). Until people fully understand that social media is erasing (has erased?) the line between the personal and the professional, these issues will continue to arise. It is our job as employers to help educate our employees about living in a “profersonal” world, even at the risk of offending the NLRB’s prickly sensitivities.

Uh, no.

But it is my job, as a long-time observer of the social media jungle to offer some advice to employers out there, and employees too.

First, for employers:

• You shouldn’t fire employees who are expressing lawful opinions that you do not agree with, even if you can. And based on where you are sited, or where your employees work, maybe you can’t. It’s a rotten world if every Republican CEO can fire Democrat employees, and vice versa.
• The NLRA needs to be examined in detail, and you should tailor social media policy documents to specifically state what the NLRA does and does not allow you to do, as an employer, and what the rights of workers are. Vague exhortations about professionalism are likely to be no help in a NLRB issue.

For employees? Just remember the opening lines of Blood Simple, the Coen Brothers’ movie set in Texas: ‘I hear that over in Russia they got it all worked out where everyone pulls together. But what I know is Texas, and in Texas, you’re on your own.’ Here, in the US, companies can fire you for just about anything, unless you live in one of the states or cities that provide greater freedoms. Move to one of those places, or accept the precariousness of employment in a social media era.

Or, of course, we could campaign to create a real Freedom To Work Law that would make our First Amendment rights something more than civics mouthwash.

Source: ohioemployerlawblog.com

30 July 2012 5 Permalink

The Wrong (And Illegal) Way To Roll Out A Social Media Policy

Royal Ahold, a Dutch holding company that owns several supermarket chains in the US, was challenged by labor unions representing supermarket workers over a recent effort to impose a social media policy, in which employees were told to sign the social media agreement or face termination.

Workers Win Battle Over Employer Crackdowns on Social Media - Bruce Vail via AlterNet

Leaders of the United Food & Commercial Workers (UFCW) union and the Teamsters have successfully backed down a large multinational conglomerate that attempted to impose such restrictions on more than 100,000 workers across the New England and Mid-Atlantic regions, union officials said.  Complaints to the National Labor Relations Board (NLRB) have resulted in the New York-based unit of the company withdrawing the disputed policy, and a settlement of similar complaints is imminent in the Baltimore area, they said.

The fight erupted late last year when supermarket chains owned by the Dutch retailing conglomerate Royal Ahold began demanding that employees sign a “Social Policy Guidelines” document that warned of dire consequences if workers used social media outlets like Facebook and Twitter to communicate too freely about their jobs. The grocery chains—Stop & Shop in New England/New York, Giant Food in the Mid-Atlantic, Martin’s Food Markets in Virginia, and a separate home delivery service called Peapod—threatened disciplinary action, including possible dismissal, if employees refused to sign the document or violated any of the guidelines.

Apparently, the guidelines and related policies have been retracted and amended, although the company has not shared any copies of any documents with reporters.

Workers Win Battle Over Employer Crackdowns on Social Media - Bruce Vail via AlterNet

In any event, a settlement of the charges in NLRB’s Baltimore region appears to be imminent, according to NLRB spokeswoman Shelly Skinner. Documents have been circulated among all the parties to the complaints, Skinner said, and the NLRB is taking the position that the language of the Giant policy is overly broad. The labor agency also sees merit in the charge that the policy could chill the exercise of the employees’ protected rights, she said. Armstrong added that his understanding of the settlement is that Giant will no longer threaten dismissal for employees who refuse to sign the policy document.

For UFCW, this victory is part of a larger struggle taking place in the realm of social media, according to Amber Sparks, director of new media at the union’s international headquarters in Washington, D.C. The union is using social media, especially Facebook, as a way to connect workers with each other and their union, she said. These efforts are provoking reactions from employers like Giant who see Facebook campaigns for fair labor contracts, or new organizing initiatives, as a threat, she said.

The National Labor Relations Board (NLRB) has released a report on employer social media policies on 30 May, in which the NLRB summarizes seven cases: six where some provisions of social media policies were found to be lawful, and one where all provisions were deemed lawful. There are some extremely interesting memos regarding Facebook posts, detailing the legal rights of workers to use social media as a means of legally protected ‘concerted activities’ — the right of workers to communicate, either in meetings or online, as outlined in the National Labor Relations Act:

via Wikipedia

Section 7 - Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…^[1]

Anyone considering the roll out of a social media policy document should read these documents closely, and take note that very broad rules about what employees can and cannot do — especially out of the office during non-work hours — can lead to problems.

With regard to the NLRB, it would be sensible to think about the various sections of the National Labor Relations Act, and employees’ rights to act on their own behalf. Blanket policies that prohibit employees from mentioning the employer or discussing activities in the workplace online may be illegal and unenforceable. Simply defining internal activities of the company or management policies as ‘confidential’ does not make them so. As the report states,

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. See University Medical Center, 335 NLRB 1318, 1320-1322 (2001), enf. denied in pertinent part 335 F.3d 1079 (D.C. Cir. 2003). 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. See Tradesmen International, 338 NLRB 460, 460-462 (2002).

The Employer in this case operates retail stores nationwide. Its social media policy, set forth in a section of its handbook titled “Information Security,” provides in relevant part:

Use technology appropriately **** *

If you enjoy blogging or using online social networking sites such as Facebook and YouTube, (otherwise known as Consumer Generated Media, or CGM) please note that there are guidelines to follow if you plan to mention [Employer] or your employment with [Employer] in these online vehicles…

Don’t release confidential guest, team member or company information… .

We found this section of the handbook to be unlawful. Its instruction that employees not “release confidential guest, team member or company information” would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves—activities that are clearly protected by Section 7. The Board has long recognized that employees have a right to discuss wages and conditions of employment with third parties as well as each other and that rules prohibiting the communication of confidential information without exempting Section 7 activity inhibit this right because employees would reasonably interpret such prohibitions to include information concerning terms and conditions of employment. See, e.g., Cintas Corp., 344 NLRB 943, 943 (2005), enfd. 482 F.3d 463 (D.C. Cir. 2007).

The next section of the handbook we addressed provides as follows:

Communicating confidential information

You also need to protect confidential information when you communicate it. Here are some examples of rules that you need to follow:

• Make sure someone needs to know. You should never share confidential information with another team member unless they have a need to know the information to do their job. If you need to share confidential information with someone outside the company, confirm there is proper authorization to do so. If you are unsure, talk to your supervisor.
• Develop a healthy suspicion. Don’t let anyone trick you into disclosing confidential information. Be suspicious if asked to ignore identification procedures.
• Watch what you say. Don’t have conversations regarding confidential information in the Breakroom or in any other open area. Never discuss confidential information at home or in public areas.
• Unauthorized access to confidential information: If you believe there may have been unauthorized access to confidential information or that confidential information may have been misused, it is your responsibility to report that information… .
• We’re serious about the appropriate use, storage and communication of confidential information. A violation of [Employer] policies regarding confidential information will result in corrective action, up to and including termination. You also may be subject to legal action, including criminal prosecution. The company also reserves the right to take any other action it believes is appropriate.

We found some of this section to be unlawful. Initially, we decided that the provisions instructing employees not to share confidential information with co-workers unless they need the information to do their job, and not to have discussions regarding confidential information in the breakroom, at home, or in open areas and public places are overbroad. Employees would construe these provisions as prohibiting them from discussing information regarding their terms and conditions of employment. Indeed, the rules explicitly prohibit employees from having such discussions in the breakroom, at home, or in public places— virtually everywhere such discussions are most likely to occur.

Bottom line: Take a long hard look at the definition of confidential information, and write any social media policies in such a way to explicitly allow lawful activities under the National Labor Relations Act, and other laws.

Employers have to accept the social web as a public space where employees have the right to assembly, and have recourse certain forms of protected speech. The social web is not just a commercial context, something that exists to sell products or position brands.

Employees can still be held accountable for illegal activities, disclosing trade secrets or private information about customers, for example. But social media policies must carefully segregate protected and unprotected sorts of speech in order to be enforceable.

Source: alternet.org

6 June 2012 9 Permalink