How the Facebook firing settlement affects YOUR company

A company accused of violating federal law for firing an employee for comments she made on Facebook about her supervisor has settled.

How does this settlement affect how your company can control employee engagement in social networking activities? The answer, after the jump.

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Last year, the NLRB’s Hartford regional office issued a complaint against a CT employer in which it alleged that the employer had violated federal labor law because it fired an employee who was engaged in protected activity when she posted the comments about her supervisor, and responded to further comments from her co-worker. Seth Borden at Labor Relations Today has a nice write-up of the procedural history of the case here.

To settle the matter, the company agreed, among other things, to amend its social media policy to ensure that it would not discipline employees who discuss their wages, hours and working conditions with co-workers and others while not at work.

Will this settlement cause companies to re-write their social media policies? 

No. 

Many pundits predicted that this case may result in an order that would disturb a very common provision in social media policies; namely, a prohibition against disparaging or defaming either the employer or one’s co-workers. (The NLRB complaint took aim at a social media policy provision that prohibited employees from “making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s supervisors, coworkers or competitors”). However, no such mandate is included in the NLRB settlement announcement

Still, I can see how the line between discussing terms and conditions of employment in a social networking environment — especially one to which the employer has access — could cause some friction, especially if the employees express their displeasure with working conditions without actually disparaging the employer.

That said, Seth Borden reports that there is now another NLRB charge pending against another CT employer in which the company is accused of violating Section 8(a)(1) of the National Labor Relations Act by having workplace rules that prohibit “the use of electronic communication and/or social media in a manner that might target, offend, disparage, or harm customers, passengers or employees; or in a manner that might violate any other company policy.”

How can employers keep disgruntled employees from venting online?

Good luck with that. If you figure out the answer, let me know. In the meantime, however, a social media policy that contains both rules and guidelines for responsible social media use will help. Add in some social media training, and employers may be able to limit exposure to social media issues in the workplace.

Remember that the National Labor Relations Act protects the rights of both union and non-union employees to discuss the terms and conditions of their employment with co-workers and others. Consequently, a social media training session presents an additional opportunity to emphasize that, in a non-union setting, it is more productive for employees to address issues involving wages, hours, and working conditions by going directly to the company, rather than by venting online. (Note: this guidance would generally not work in a unionized workplace because the union would serve as the collective bargaining agent for its union members).

Also, consider having (or re-emphasizing) an open-door policy. Reaffirm to your employees that their problems are your problems and you are willing to address those problems with them, face-to-face. Therefore, publicly airing grievances on Facebook would only be counter-productive to that process.

Your employees will have bad days. 

And trust me, from time to time they will vent online. They’re human. Just be sure to remind them that there are other, better options, and you may not have to reach about it (as much) online.

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