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WHAT TO TELL EMPLOYEES ABOUT FACEBOOK

2/14/2013 - “Captain, the Klingon ship has changed course. It is heading toward us at warp speed.” . . . some Star Trek episode, somewhere in space . . .

To What Universe Is Social Networking Heading?

(Someone might rightly refer to the following statements as “a tremendous grasp of the obvious,” but here we go, nevertheless . . . .) The proliferation of social networking and the social media is continuing to move forward at warp speed, which is to say that it’s pushing ahead so fast we can hardly keep up with it. News, messages, texts, emails, tweets – 140 characters, more or less – all instantaneous and mobile, and all with a great opportunity for good or ill, as Manti T’eo, and others, might tell us. Our society today is a digital society and we know that the workplace mirrors society – that is, what is going on in society will, ultimately, make its way into the workplace. Thus, our employees now come to work armed with “smart phones” that include voracious social networking capabilities, not the least of which is the ubiquitous Facebook.

If employees use Facebook to talk about their own personal interests, that’s one thing – but if they use Facebook to talk about work related activities, all of a sudden we’re in an entirely different arena, because employees might post derogatory information about their employer, their work, their pay, their co-workers, their supervisor, their customers or, the case of churches and synagogues and private clubs, their members. If they post in this way, what can we, as employers tell them and what restrictions can we require? The answer is – very little, and very few, owing to the National Labor Relations Board’s regulations on “concerted protected activity.”

Protected Concerted Activity on Facebook.

For the most part, according to the NLRB, employees have the right to engage in “protected concerted activity” which is where two or more employees are discussing their wages, benefits and working conditions. They have the right to engage in this activity and we, as employers, cannot prohibit it. An example would be where two or more employees discuss their pay rates with one another -- employees have this right and employers are not allowed to have a policy prohibiting it. They have this right at work, at the water cooler, on the job and . . . on Facebook. As strange and objectionable as it seems, this right even extends to offensive language about the employer or the supervisor, language my mother used to call “uncouth.”

However, in order for the behavior to be “protected concerted activity,” it must meet the following criteria – it must (1) concern wages, benefits and/or working conditions and (2) two or more employees must be involved. Thus, if an employee posts something to the effect of, “My supervisor is a purple jackwagon,” and if other employees respond with their own postings, then the behavior has met both criteria and is, thus, “protected concerted activity.”

The situation gets a bit more complex when it comes to members of a private club, congregants at a church or synagogue, customers, clients, etc., in the following way. If a person posts a derogatory comment about, for example, a club member, and if that comment relates to wages, benefits and working conditions, then it is protected. An example might be, “Mr. Blogcycle was rude to me when I was serving him at lunch today. Sometimes he can act like a real jerk.” Other employees answer the post and agree that Mr. Blogcycle is a real jerk. Then, as much as we don't like this sort of thing, and as much as Mr. Blogcycle might get upset, it is “protected concerted activity,” in this context, as it has to do with working conditions. On the other hand, if the comment does not relate to work, it is probably, but not assuredly, not protected. An example might be, "Did you see Mrs. Blitherington’s outfit today at the tennis court. She looked like she belonged in a circus!” Since this comment is unrelated to wages, benefits and working conditions, then it probably would not be “protected concerted activity,” as contemplated by the NLRB regulations.

Sandy’s Suggestions for Successful Solutions.

From an HR standpoint, our best recommendation is to leave the Facebook pages of employees alone as much as we can. We strongly recommend that supervisors not access the Facebook pages of their employees, not “friend” employees on Facebook (we know we’re in trouble when a noun becomes a verb . . .), not comment about the Facebook pages of employees and not post on the Facebook pages of employees. This is TWTH (Trouble Waiting To Happen). We also don’t recommend an employment policy that instructs employees about proper posting on Facebook, as this moves us ever closer to the protected category. If absolutely necessary, a few words about caution and prudence might be all right, but in general terms, the less said about employees’ personal Facebook pages, the better.

In addition, we recommend that you exercise extreme caution when considering whether to discipline or reprimand an employee for a personal Facebook posting. We don’t say it can’t be done, but we do say that, if it is done, we have to be very, very careful. We might come out ahead at the end of the day, but sometimes we can spend a lot of money proving we were right. I am reliably informed that when someone asked Coach Bear Bryant if he walked on water, he replied, “Well, I won’t say that I do and I won’t say that I don’t. But if I do, I do it real early in the morning, when no one can see me.”

The question of the use of smart phones at work is another, similar issue. Some employers completely prohibit their use at work, while others allow restricted use. Without question, employees should not be allowed to use their smart phones to access any of the social networking sites at work, or to take pictures with their smart phone cameras, as this is TWTH.

We trust this information is helpful to you on this evolving workplace issue. If you have a social networking situation occur at work, be sure to contact your Seay Management consultant, so we can work through the situation with you and provide you with the comfort and assurance that you’re handling it the right way. When it comes to employment matters like these, we most definitely do not want “. . . to go where no man has gone before,” as Captain Kirk tells us, because that is TWTH. “Enterprise, out . . .” .



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