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Facebook Firing Ends in Settlement with NLRB

The National Labor Relations Board (NLRB) announced that it had reached a settlement in a case involving an employee’s discharge for posting negative comments about a supervisor on the employee’s Facebook page. Click here for the NLRB’s press release.

In sum, however, the NLRB had issued a complaint against American Medical Response of Connecticut, Inc., on October 27, 2010,  alleging that the discharge violated federal labor law  (the National Labor Relations Act or “NLRA”) because the employee was engaged in “protected activity” when she posted the comments about her supervisor, and responded to further comments from her co-workers.

Under the National Labor Relations Act, employees  have a federally protected right to form unions, and it prohibits employers from punishing workers — whether union or non-union — for discussing working conditions or unionization.

The NLRB complaint also alleged that the company maintained overly broad rules in its employee handbook regarding blogging, Internet posting, and communications between employees. This policy prohibited employees from making disparaging remarks about the company or depicting it online without permission. Further, the NLRB alleged that AMR (the employer) had illegally denied union representation to the employee during an investigatory interview shortly before the employee posted the negative comments on her Facebook page.

Under the terms of the approved settlement, the company agreed to revise its social media policy to ensure that the rules do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions. The allegations involving the employee’s discharge were resolved through a separate, private agreement between the employee and the company.

The Take Away for Employers

This had been the first case in which the NLRB sought to argue that workers’ criticisms of their bosses or companies on a social networking site was a protected activity under the NLRA and that employers would be violating the NLRA by punishing workers for making statements in the context of social media. Accordingly, employers likely would have welcomed guidance from the NLRB as to how the 75-year-old NLRA would be reconciled with the technological realities of how employees communicate in the age of social media.

For example, the employee involved in the NLRB’s complaint, Dawnmarie Souza, at one point mocked her supervisor on Facebook, using several vulgarities to ridicule him. This eventually drew supportive responses from her co-workers that led to further negative comments about the supervisor. Where a Facebook conversation involves several co-workers it is more likely to be viewed as “concerted protected activity.” But what if instead, Ms. Souza had simply lashed out in a negative post against a supervisor and no co-workers joined in the discussion (not even a single “like” in Facebook terminology). Would that type of comment in the absence of “co-worker discussion” still be considered protected?

In any event, from a strategic perspective, employers should appreciate that this issue will be resolved another day, perhaps under a less “labor friendly” NLRB.

The clear take-away, however, is that the NLRB’s original complaint and this settlement signals that the NLRB intends to protect employees’ rights to discuss the conditions of their employment with co-workers irrespective of whether this discussion takes place at the water cooler or on Facebook.

Accordingly, it is critical for employers – regardless of whether your workforce is unionized or not – to review your Internet and social media policies to determine whether they would be subject to a similar attack by the NLRB that the policy ‘reasonably tends to chill employees’ ” in the exercise of their rights under the NLRA to discuss wages, working conditions and unionization. Areas to consider include:

  • Does the social media policy expressly restrict protected activity;
  • Would an employee construe the social media policy as prohibiting protected activity;
  • Has the social media policy been used to discipline employees who engaged in protected activity; and
  • Was the policy put into place in in response to concerted or protected activity.

None of  this should be taken as legal advice, but it is good advice. And we would welcome the opportunity to offer our insight as to what policies should and should not say and strategies for managing the unique risks found at the intersection of social media and employment and labor law.


How to Increase the Likelihood Employees will Follow Your Social Media Policy

A lot has been written about social media, its impact on business, and risks for employers. See my prior posts here (Digital Security Report: Social Networking Expand Risks for Employers) and here (Another Reason for Employers to be Wary of Social Media – Unfair and Deceptive Acts). And to mitigate these risks the conventional wisdom says to put a policy in place that applies to employees’ use of social media. But it is also important to implement a policy that is actually effective and will be followed by employees.

Before discussing such a policy, a little foundational information is needed. In their book “Switch: How to Change Things when Change is Hard,” Chip and Dan Heath explain that any change must consider what is described as the “Rider” and the “Elephant.” This analogy is, in turn, taken from Dr. Jonathan Haidt’s book “The Happiness Hypothesis,” which describes the emotional side of our brain as an elephant and the rational side as its rider. This analogy creates a vivid image of a person sitting atop an elephant holding the reins seemingly in control. Or at least until the elephant and rider disagree about which direction to go at which point the rider will ultimately lose the battle. (This analogy also vividly explains why despite wanting to lost 10 lbs I can’t put down these delicious cookies. Damn you elephant, Damn you!).

This is a very cursory and simplified explanation of a great book.* But with this explanation, let’s insert the Rider/Elephant into the social media policy implementation equation.

Direct the Rider: The Heath Brothers note that resistance is often due to a lack of clarity. In this regard, social media policies are simultaneously too specific and too broad. This leaves the Rider with information overload and too much ambiguity to process, which undercuts the Rider’s ability to control the elephant. This is because the Rider experiences a decision paralysis, i.e., too many choices consume the Rider’s cognitive resources making it that much easier to give into the immediate emotional needs of the elephant.

For example, a proposed social media policy was forwarded to me by an attorney (a non-client. The attorney wanted to know my thoughts – i.e., free legal advice). This policy was more of a manual, which came in at just over 14 pages. Now imagine you are  John Doe, disgruntled employee blowing off steam on Facebook about a dispute he had with Jane Doe manager. Or that you are Jane Doe manager twittering about your company’s upcoming product release. In these examples, John Doe would need to review Section III, paragraph A(1) to evaluate what his company considers to be appropriate on-line discussions of co-workers. Jane Doe, however, would need to consult with Section V, paragraph B(1) to evaluate how company information should be treated, and would probably want to consult with Section VII, which deals with marketing and communications with the public. Any bets that this policy will be followed?

So lets replace the preceding 14 + page manual with a set of rules that script the critical points your organization wants an employee to consider before publishing  something on any social media outlet. I call this the “Think Before you Publish” Social Media Policy (I know, I’m very creative):

  • Rule No. 1 – Assume anything you blog about, tweet, update on Facebook, or otherwise publish will appear on the cover of the Wall Street Journal;
  • Rule No. 2 – Assume you will have to explain to your mother, father, children, or any loved one why you published any of the preceding and what you were thinking at the time; and
  • Rule No. 3 – If your social media publication involves your employer, any of its managers, employees, products, or services, assume you will also have to explain why and what you were thinking when you made such post to any of these constituents.

These rules taken together provide a working framework for an employee to consider, where the focus is on “specific behavior,” i.e., think about what you are about to publish before making it public. These rules also do not tax the Rider’s cognitive processes by requiring the Rider to evaluate the content of a “tweet” or a Blog posting, or a Facebook update with sections from a 14 + page manual.

I fully concede that it will be important to supplement these three rules with explanations, especially when it comes to work related publications that may not seem facially inappropriate. Examples may include releasing non-public information about an upcoming product release, endorsing a produce or service without considering the Federal Trade Commissions recent expansion into this subject, or if your product or service is in a heavily regulated industry with specific issues to address. But at the very least, these three rules are intended to provide a moment to reflect before hitting that “share” button.

Motivate the Elephant: Motivating the elephant means appealing to a person’s emotional side. This is because simply speaking to the rational rider will not carry the day (I know if I want to lose weight, I need to exercise and eat fewer calories, like from cookies. Yet here I am enjoying one two cookies). Similarly, employees are often given a policy manual to read and review and a form acknowledging the employee has done both. Applying this approach to social media does little to appeal to the “Elephant.” But how do you appeal to an employee’s self-interests to obtain actual buy-in when it comes to following your social media policy?

There are innumerable examples of what happens when social media goes wrong. For example, recently a female middle school teacher was discharged after photographs of her engaged in a simulated act of fellatio with a male mannequin appeared on an internet website (Land v. L’anse Creuse Pub. Schs. Bd. of Educ.). These pictures were taken at a combined bachelor/bachelorette party. The discharge was later reversed by the Michigan Teacher Tenure Commission and affirmed by the Michigan Court of appeals. While this case had a happy ending for the teacher in that she got her job back, it came after a prolonged litigation process that was witnessed, at a minimum, by school employees, students, and parents.

Another great example occurred last year when a consultant/VP tweeted about being in Memphis: “… i’m in one of those towns where I scratch my head and say ‘I would die if I had to live here!'” Unfortunately for the consultant, he was in Memphis because he was presenting to a major client headquartered in Memphis (a little company called FedEx). Worse, employees at FedEx ran across the tweet. And even worse, FedEx responded. Click here for the full write-up and the response.

There is even a website called that allows one to look through posts on Facebook users’ walls, including the potentially embarrassing and  career-ending kind. In perusing through this site, I was amazed how many people have a boss who is an idiot!

Using these examples – and many, many others – to illustrate why an employee should follow the company’s social media policy appeals to the elephant, i.e., “follow these rules so you don’t end up like the last jack-ass that called me an idiot.” Again, the intention is that before an employee hits the share button, he or she will reflect on what might happen to the individual if the publication became public knowledge.


Social media is widely considered a “must’ for business organizations. That might be true. Even if it is not, however, it is a must to have a social media policy.  To increase the effectiveness of that policy keep in mind your Riders and Elephants. In other words, make the policy succinct and readily translate into expected concrete behavior. Second, when presenting the policy to your employees, don’t forget to appeal to their elephant by addressing their emotional interests, i.e., show why the policy is intended to help the individual.

Feel free to forward me any outrageous or noteworthy social media policies with a brief explanation of why the policy is either. Also, contact me with any questions about this topic.

* I don’t know the authors Chip and Dan Heath. I’ve never spoken with either individual. In fact, other than seeing their pictures on the inside of the book jacket, I couldn’t pick Chip or Dan out of a line-up. I bring this point up because Switch and their earlier book, Made to Stick, are both fantastic reads, worth picking up and this recommendation is based solely on the merit of those books and no personal connection or personal interest on my part (I’m deliberately not including a link to either book to remove any suspicion that I’m even getting compensated for referrals to the books). Although, in full disclosure, if the Heaths would like to give me a cut from the increased book sales my post is certain to generate, I’m willing to negotiate (and please read the preceding disclosure with heavy sarcasm).

Written by Jason Shinn

July 5, 2010 at 10:01 pm

Digital Security Report: Social Networking Sites Expand Risks for Employers

Digital PadlockSocial networking websites—such as Facebook, LinkedIn, and MySpace— give users the platform to post information about themselves, to stay in touch with friends and meet new ones. These sites also create a buffet of legal and IT risk that business organizations must address.

In regard to IT risk, Sophos, an international provider of enterprise cyber-security solutions, released its Security Threat Report. The report noted that criminals have increased the focus of enterprise attacks using social networking sites. Click here to be linked to Sopho’s overview of the Report and here for the full report.

The Report also provides various recommendations and insight for responding to risk created by social networking websites. Despite the risks, Sophos recommends against employers implementing a wholesale ban on these social networking websites. The rationale for this conclusion is that users/employees will likely circumvent the employer’s protective measures and thereby open up another layer of vulnerability to the organization.

In regard to legal risks, these sites hold a goldmine of information for employers that may be useful in qualifying and screening potential hires. In fact, one in five decision-makers use social networking sites to screen potential applicants. See One in five bosses screen applicants’ Web lives. But the other side of the coin is that an employer may learn about information that may later become a cornerstone in a discrimination lawsuit. For example what if the information revealed that an applicant  is in a protected class under federal or state laws, e.g., photos showing a person’s race, information about a person’s religious affiliations, or that an applicant is pregnant. Whether this information was a determining factor in the adverse hiring decision will be answered against the factual backdrop  that the employer checked the applicant’s profile and was therefore aware of the particular fact creating the protected class under state for federal law.

Other risks employers must address when it comes to social networking sites is the disclosure of confidential and proprietary information. In a recent and extreme example, Britain’s new spy chief’s wife, posted family pictures and exposed details of where the couple live and take their vacations (or for those outside of the U.S., holidays) and who their friends and relatives are on her FaceBook page. The British spy agency was concerned that this information could compromise security and potentially be useful to hostile foreign powers or terrorists. See British Spy Chief’s Cover Blown on Facebook . (No offense to the spy chief’s wife (Lady Shelley Sawers), but I don’t ever recall any Bond Girl exposing Mr. Bond on their FaceBook pages).

While not every business organization employs a top spy or incorporate national security into their business plans, most organizations do have information they consider to be top-secret. Whether it is marketing plans, customers, formulas, etc., inadvertently distributing such information via the social networking world may significantly undercut a business initiative or other strategic plans. I’ve also run into situations where employees exchange information in responding to and asking questions through various Listservs and similar platforms. While the motivation is generally legitimate, the unintended consequence may result in the disclosure of confidential and proprietary information or preclude protection under a particular IP strategy.

There are a numerous risks that should be weighed against the benefits of social networking sites (feel free to contact me for more information). But a few take-aways for employers are as follows:

  1. First and foremost, start with determining what the employer’s expectations are when it comes to using company resources to access social networking sites. It may not be worth the trouble and risks and an across the board ban will be implemented. Or, it may be allowed with respect to certain departments. Ideally, formulating this expectation will involve working with your IT professionals. For instance, is it feasible to implement a wholesale ban against using social networking applications or is there a business justification for making exceptions? If so, what security gaps need to be addressed?
  2. Second, make sure your expectations are reflected in your company’s Internet acceptable usage policy and this policy expressly applies to social networking sites. Also, make sure that the policy clearly spells out the ramifications, including the levels of discipline that may occur for violating the policy.
  3. Third, educate users as to your expectations and be prepared to offer explanations for the policy/ban, e.g. the security risks, the risks of exposing information that provides a competitive edge to the company, etc. I know from experience that it is becoming common for employers to include social networking sections to their training on protecting corporate information. This is not a legal requirement, but speaking from experience, it is easier for an individual to “buy-in” to a policy if there is a rational reason for it.
  4. Finally, and this relates to the first point, work with IT to determine how the policy will be enforced. While the “scouts honor” system works great for scouts, a better approach is to rely on some sort of analysis of Web logs, which will detail use during business time (if not allowed), or implementing an automated search of websites for corporate information.But that is just the cynic in me speaking.
What if the information revealed on the site puts the applicant in a protected class under federal or state laws. Whether the information putting the applicant in the protected class was a determining factor in the adverse hiring decision, the fact that the employer checked the profile and was aware of that fact may give rise to an allegation of discrimination. In addition, the applicant’s conduct could be protected concerted activity under federal labor law. Also, some states prohibit adverse employment actions based on political expression.