What is social media?

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

4. 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

5. 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

6. …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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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)

14. 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

15. 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

16. 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

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

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

19. 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

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

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

22. 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

23. 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)

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

25. 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

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

27. 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

28. 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.”

29. Policy alternatives

30. 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

31. 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

32. 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

33. 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

34. 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

35. 6. Online reviews

36. 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

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

38. 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.”

39. 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.”

40. 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

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

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

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

44. Questions? Katie Loehrke J. J. Keller and Associates, Inc. kloehrke@jjkeller.com

45. When Going Viral Goes Wrong Katie Loehrke J. J. Keller and Associates, Inc. kloehrke@jjkeller.com