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What is social media? PowerPoint Presentation
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What is social media?

What is social media?

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What is social media?

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Presentation Transcript

  1. What is social media? Social media is any interactive online tool that allows people to create and share content. It includes:

  2. If Facebook were a country • Facebook: • 1.6 billion monthly users • 1 billion daily users • Population of U.S.: about 324 million • Population of India: about 1.3 billion • Population of China: almost 1.4 billion

  3. How things have changed… • Today’s Internet is highly interactive • Social media has changed how both employers and employees communicate • Social media widens the scope of influence for its users

  4. …and how they’ve stayed the same • Case law creates guidance but is a bit behind • The National Labor Relations Board (NLRB) has had a lot to say about social media policies

  5. You have concerns (at least 8) • Employee posts protected activity • Employee activity that is not protected • Employee posts obnoxious content • Employee violates policy with online content • Employee posts on work time • Employee leaves negative review online • Employee uses social media for work purposes • Vetting applicants online

  6. The National Labor Relations Act The National Labor Relations Act: • Applies to both union and nonunion employers • Protects employees’ rights to discuss terms and conditions of employment, which may include: • Wages • Working conditions • Policies • Management practices

  7. The National Labor Relations Act • Employees’ right to engage in concerted activity for mutual aid and protection extends to social media • Policies may not forbid or discourage employees from discussing terms and conditions of employment with one another • Employers may not discipline or retaliate against an employee for exercising this right, online or otherwise

  8. 1. Employee posts protected activity Unpleasant fact of the day: An employee may make a negative post online that damages your company’s reputation, and there may be nothing you can do about it

  9. Disgruntled call center employee • Transferred employee discusses discontent online with Facebook friends • Employee terminated based on employer’s policy prohibiting “disparaging comments” Outcome: NLRB held the termination to be unlawful

  10. Car meets pond; hot dogs; and photos Event 1: Employee at sister dealership accidentally drives a luxury vehicle into a pond Event 2: Luxury dealership conducts new vehicle launch, serving hot dogs and water Employee posts photos of both events and criticizes the employers’ choice of refreshments at the launch event Outcome: NLRB held the termination to be unlawful

  11. 2. Employee activity that is not protected • Employees are not protected by the NLRA if they’re not discussing terms and conditions of employment • Don’t individuals have first amendment rights? • Yes…as: • Private citizens • Public employees • But not as: • Private employees (employees of private employers)

  12. Cranky bartender • Bartender insults customers and complains about pay on Facebook • This was not concerted activity because no coworkers responded to his post Outcome: NLRB held the termination to be lawful

  13. Irritated tweets Customer: (After receiving a freebie at the restaurant) “Free [food] is the best thanks.” Employee: “Nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?” Customer: (Posted about the company’s guacamole) “[Guacamole is] extra not like [another fast-casual restaurant], enjoy the extra $2.” Outcome: NLRB held that the employer’s actions were unlawful

  14. Tasteless tweets • On Twitter, employee mentioned AIDS in conjunction with race • Employee’s crude (off-duty) tweet was retweeted over 2,000 times • Employer: The employee’s comment “does not reflect the views and values of [the company]” • The employment relationship was terminated

  15. Plain old complaining • Employee complaints about the company are not always protected under the NLRA

  16. 3. Employees behaving obnoxiously • Is the activity protected under the NLRA? • Did you access the post in an acceptable way?

  17. Freely given access • Stored Communications Act governs when online posts can be accessed by employers • Employers must have “freely given access” to an employee’s communications storedon an outside server

  18. Oops! ‘Facebooking’ gone wrong Employee: “OMG I HATE MY JOB!!” Employee’s boss: “Hi, I guess you forgot about adding me on here?”

  19. Oops! ‘Facebooking’ gone wrong Employee: I swear, all the passengers on today’s flight were smelly and annoying!

  20. Poll: Do you have access? Can you discipline Laney (not your Facebook friend) for using a racist slur toward another employee online? • Yes, you have access through Arthur • No, neither Arthur nor Laney gave you access

  21. 4. Employees violating policies • You may be able to impose discipline for online posts that violate company policies (if the posts aren’t protected by the NLRA)

  22. Activity on nonwork time • California and Colorado have laws protecting employees who participate in legal activity on nonwork time

  23. Annnnd… we’re back to the NLRA • “Overbroad” policies discouraging employees from exercising rights under the NLRA are not allowed, even if they are never enforced

  24. Problematic policy language • Avoid vague language, including: • “disrespectful conduct” • “insubordination” • “inappropriate conversation”

  25. Problematic policy language • Additional problematic language: • “unprofessional communication” • “disparaging,” “derogatory,” “defamatory” • Hospital’s overly broad expectation: • “Behavior that is disruptive to maintaining a safe and healing environment or that is counter to promoting teamwork” is unacceptable

  26. Fast-casual policy provisions • “If you aren’t careful and don’t use your head, your online activity can also damage [the company] or spread incomplete, confidential, or inaccurate information.” • “You may not make disparaging, false, misleading, harassing or discriminatory statements about or relating to [the company], our employees, suppliers, customers, competition, or investors.”

  27. Policy alternatives

  28. Policies and ‘overbroad’ policies • Social media (and other) policies should not: • Require employees to get permission before discussing the company • Forbid employees from using the company name online • Forbid employees from sharing “confidential” information without expressly stating what that entails

  29. Limiting language Employers may want to consider limiting language, BUT: • It won’t undoproblematic policy language, and • Some employers prefer not to draw attention to employee rights under the NLRA

  30. Extra obnoxious (and vulgar) behavior • Two workers returned uncashed bonus checks to CEO with a few choice words in protest • Photos of the checks (complete with profanities) were also posted on the union’s Facebook page • Other employees followed suit

  31. 5. Employees misusing work time • Employers may monitor employees’ online activity during work time • Employers may discipline employees for engaging in nonwork activity (like perusing or posting to social media) on work time

  32. Should you block social media sites? • Employers may block social media sites where they are not used for business • However: • Younger generations of workers report not wanting to work for employers who block social media • Social media is increasingly used for business purposes • Employees may get access to social media in other ways

  33. 6. Online reviews

  34. Responding to reviews • If you want to change the conversation, engage in the conversation • Respond to negative reviews respectfully • Take opportunities to showcase positive elements

  35. Responding to reviews • Speak to prospective employees in your responses • Take down your defenses long enough to learn from the feedback

  36. 7. Employees using social media for work From an intern at a major fashion label: “Spelling is hard for me. I hate this job. Hope they find someone soon.”

  37. Oops! Tweets gone wrong From a major automaker’s social media strategist: “I find it ironic that Detroit is known as the #motorcity and yet no one here knows how to [#!@$%#] drive.”

  38. Tips to avoid online embarrassment • Create clear policies — and enforce them • Who can use social media on the company’s behalf? • What does the company hope to accomplish with social media? • Provide training • Explain desired tone and acceptable content

  39. Consider password security Which of the following was NOT one of the top five passwords used by individuals in 2015? • Password • qwerty • 123456 • asdf

  40. 8. Vetting applicants • Many employers peruse public profiles • Have a business reason for looking into applicants online

  41. Risks • Online background checks may inadvertently obtain protected information • Consider having another individual (who won’t make the hiring decision) do the checking

  42. Questions? Katie Loehrke J. J. Keller and Associates, Inc.

  43. When Going Viral Goes Wrong Katie Loehrke J. J. Keller and Associates, Inc.