InformationWeek Stories by Dan Liutikas

InformationWeek Stories by Dan Liutikashttp://www.informationweek.comInformationWeeken-usCopyright 2012, UBM LLC.2012-11-30T14:25:00ZAvoid Vague Social Media PoliciesRecent National Labor Relations Board decision reminds employers that employee speech related to terms of employment is protected.http://www.informationweek.com/global-cio/interviews/avoid-vague-social-media-policies/240143014?cid=RSSfeed_IWK_AuthorsA recent decision by the National Labor Relations Board, the first social media case the NLRB has decided, provides employers with some guidance on which types of social media policies may not be appropriate. In Karl Knauz Motors Inc., the key issues were whether the employer (a) lawfully terminated an employee for comments he made on Facebook about an automobile accident involving a customer at his employer's dealership and (b) violated the National Labor Relations Act (NLRA) by inserting a rule in its employee handbook requiring employees to treat others with courtesy and to refrain from using language that could harm the employer's image. Karl Knauz Motors, the employer in this case, issued an employee handbook with a rule that reminded employees of their duty to be courteous to others. The rule stated: "Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership." [ For more on the evolving role of social analytics in the workplace, see <a href="http://www.informationweek.com/global-cio/interviews/social-analytics-isnt-just-for-social-ne/240142166?itc=edit_in_body_cross">Social Analytics Isn't Just For Social Networks</a>. ] One employee, a salesman at a Knauz BMW dealership, had attended a promotional sales event and posted photos of it on his Facebook page. The photos included dealership personnel eating food at the event, and underneath the photos the salesman posted comments that mocked the inexpensive fare. Shortly thereafter, at a Land Rover dealership Knauz owned, a customer accidentally drove a display vehicle into a nearby pond. The employee then posted photos of that episode on Facebook, along with a sarcastic description of it. Eventually, other Knauz employees posted sarcastic comments underneath the employee's descriptions of both events. When Knauz executives became aware of the social media postings, they discussed the matter with the employee, telling him that the postings were disparaging to the company and damaging to its reputation. Knauz then proceeded to terminate the employee for the Land Rover posting. The employee filed an unfair labor practice charge with the NLRB, alleging that he was terminated for engaging in concerted activities protected by the NLRA. An NLRB administrative law judge held that the employee's social media posting about the BMW event was protected concerted activity under the NLRA because his criticisms of the food were shared by co-workers, and there was a possibility that their criticisms were connected to the dealership's reputation, which could affect sales. Since lower sales could hurt their commissions, the employee's posting was connected to the terms and conditions of employment.   <div style="margin:0; padding:0 0 10px 15px; width:244px; float:right;"> <div style="margin:0; border-top:1px solid black; border-bottom:1px solid black; padding:6px;"> <a href="http://www.informationweek.com/global-cio/"><img src="http://twimgs.com/infoweek/1217/217ID_GlobalCIO_75.jpg" width="75" height="75" border="0" align="right" alt="Global CIO" style="margin:0 0 6px 6px;"></a> <div style="margin:0 0 6px 0; font-size:1.3em; font-weight:bold; color:#113e53;">Global CIOs: A Site Just For You</div> Visit <a href="http://www.informationweek.com/global-cio/">InformationWeek's Global CIO</a> -- our online community and information resource for CIOs operating in the global economy. </div> </div>   However, the judge held that the employee's Land Rover posting was not protected concerted activity, because it was posted solely by the employee, without discussion with any other employee, and it had no connection to the terms and conditions of employment at Knauz. Most important, the judge found that the employee was terminated for his Land Rover posting, not his BMW event posting. This case and ruling confirms that employers must avoid ambiguous rules that could be construed against them, including rules requiring certain standards in employees' speech. If an employer issues a rule regulating employee speech, including social media posts, the rule must exempt speech regarding the terms and conditions of employment. Online Marketing Summit is hosting a free webinar, <a href="http://event.on24.com/r.htm?e=537044&s=1&k=FA1B87EA12F4C518A9154B3C28EAD023">Trends & Challenges For Digital Marketing</a>. Join industry thought leaders to learn about the trends and challenges that are transforming digital marketing and how to develop your 2013 strategy and initiatives to account for them. It happens Nov. 30. 2011-05-26T08:00:00ZThe Law Of Social Media: Employers BewareA harder line against employers by the National Labor Relations Board, as well as a lack of case law, leave a lot of room for business risk.http://www.informationweek.com/thebrainyard/news/229625636?cid=RSSfeed_IWK_AuthorsSocial media--and its potential legal impact on business, privacy, publicity, and employment law--is one of the hottest topics of the day. With so much uncertainty and so few legal precedents, it's a daunting task to wade through the hype in order to implement the policies that protect your company. One of the debates drawing the most attention concerns the employment implications of personal information posted on Facebook, Twitter, and like sites. The main issue is whether an employer's social media policies violate its employees' right to engage in legally protected activities while outside the workplace. For example, the right of co-workers to discuss their wages and working conditions while not at work is protected under the National Labor Relations Act. Back in December 2009, the National Labor Relations Board issued an advisory opinion on Sears Holdings' social media policy. The company's rules contained very explicit prohibitions on employees' usage of social media, including a ban on "disparagement of company's or competitor's products, services, executive, leadership, employees, strategy, and business prospects." In that advisory opinion, the NLRB stated that the complaint against Sears Holdings should be dismissed as the social media policy cannot "...reasonably be interpreted to prohibit..." a protected activity. However, the agency now appears to be taking a much stronger stance on restrictive social media policies, particularly in recent matters involving Thompson Reuters, the news organization, and American Medical Response, a medical transport company. In both of these matters, the NLRB alleged that the companies violated the National Labor Relations Act by disciplining employees who posted comments on social media websites that were interpreted by the employer as negative and disparaging against the employer. The AMR case was settled earlier this year, with the company essentially agreeing to the NLRB's demands to revise its social media policy to ensure that it doesn't restrict employees from discussing their wages, hours, and working conditions with co-workers and others while not at work, and agreeing to not discipline or discharge employees for engaging in such discussions. Thompson Reuters is in negotiations with the Newspaper Guild to resolve its matter, with the looming threat of an NLRB claim if the parties fail to settle. The seemingly contradictory and stronger positions from the NLRB, as well as a lack of case law on this matter, leave a lot of room for disagreement and business risk. Is the NLRB making more of this situation than required, or are companies overreacting to criticism, resulting in overly prohibitive policies that infringe on their employees' rights? I tend to answer yes to each of those questions. In my opinion, the NLRB is making too big of an issue by initiating these cases, while some companies do go way too far trying to defend their interests and reputations. Although it's an important debate for those of us in the legal community, the real challenge for most companies is to protect their interests without raising the ire of the NLRB or creating other negative effects. No one set of best practices has risen from the ashes of the NLRB cases, but businesses can take reasonable and defensible measures to minimize their exposure and risk. -- Maintain consistent protocols to screen applicants' social media profiles and information regardless of their race, gender, or other protected class status. -- Develop a basic understanding of the activities protected by the NLRA. -- Educate screeners and HR professionals on the requirements of the Fair Credit Reporting Act and its state equivalents to promote the lawful use of background checks. -- Access private employee information resources only with proper employee authorization to avoid liability under laws governing electronic resources (such as the Stored Communications Act) and under common law privacy rules. -- Comply with the terms of use of all social media websites. -- Ensure that employment decisions are made with accurate information, as false and misleading information is prevalent in social media. -- Avoid retaliatory employment actions (terminations, demotions, etc.) against protected activities. If employees use social media to communicate about union activities or other rights protected under the NLRA (such as conditions of employment), refrain from restricting their speech or taking employment actions that could violate the statute. Non-union workplaces must also abide by rights conferred by the NLRA. Most important, understand that your employees will talk with one another about their experiences at your company. They will blow off steam, and sometimes they will share information and opinions on social media that you may not like. Show reasonable restraint. Make the effort to identify real issues versus benign annoyances, and get a second opinion from a trusted adviser, such as your attorney, before taking action against an employee. In this way, you will cultivate a more open and enjoyable work environment, foster trust with your employees, and avoid unnecessary legal exposure. Dan Liutikas is the chief legal officer of CompTIA, a non-profit IT industry trade association, where he oversees legal and regulatory affairs.