Do We Have the Rights to Talk about Work or our Boss on Social Media?

It is not new to hear people got fired because of their updates on social networking sites. In one extreme case, a man got fired even for his random thoughts posted on Facebook. So, is it legal for companies to fire employees because of their updates on social media sites?

Employees have the rights to discuss face-to-face on “protected concerted activity” as outlined by the National Labor Relations Board (NLRB). For example, employees can talk about their wages and work conditions with co-workers. According to The Lodging Magazine (2013), the answer to whether employees have the rights to talk about work or their boss on social media sites depends on whether the employee’s update is considered as protected concerted activity.

The article in The Lodging Magazine reported two cases with the published decisions from NLRB. One case involves in an employee’s sarcastic comments about the employer. This employee is not protected because NLRB believes that the comments were made “solely by the employee without any discussion with other employees.” In the other case, an employee responded to a co-worker’s criticisms of her job performance as well as the performance of other co-workers. This employee was fired, but NLRB ruled in favor of the terminated employee because the employee’s behavior is “a call to group action that related to their working conditions.”

Even though it is noted that the decision made by the NLRB may turn out to be invalid because the Supreme Court by the Administration is still pending on its decision on whether the NLRB “lacks a quorum and is unable to conduct business,” employers are advised to keep such decisions of NLRB in mind. In the end, the article lists six suggestions for employers’ considerations (direct quotes):

• Eliminate policies that require employees to maintain confidentiality over wages, bonuses, or commissions.
• Review social media policies for non-specific terms that need further definition or stricter language.
• Adjust overly broad language that prohibits employees from discussing company policies, schedules, safety, dress codes, work assignments, other staff, or management.
• Eliminate or change language that prohibits posting of company logos, company name, identification of employee with the company, etc.
• Where legitimate issues are involved, define information that the company considers confidential (private employee data, guest information, strategic marketing plans, financial particulars).
• Consider a disclaimer at the end of the social media policy that makes clear that the policy is not intended to restrict an employee’s Section Seven Rights under the NLRA.

My suggestion to individual users is to think before posting any negative comments about work or their boss. They may ask themselves: besides venting my feelings about work or my boss on social media sites, how does my update help solve the issue? Are there other places for me to vent my feelings? Are there other places I can seek solutions (e.g., the HR Office, the corporate HR Manager, the NLRB, etc.)?

I agree to the article that managers need to revisit their companies’ policy. Ideally, I believe that the best solution to “stop” employees from bad-mouthing the company or their supervisors is to nurture an organizational culture that value employee feedback. If employees know their employer listens to them and shows genuine interest to them, they tend to be more open to their managers about their feelings and thoughts. If their issues are solved, they will not need to vent their feelings on social media sites any more. What do you think?

References:

Ryan, Andria, & Lominack, Reybun. (2013, March). Word to the wise: the National Labor Relations Board is weighing in on social media communications and employee rights; Here’s what hoteliers need to know. The Lodging Magazine (The official magazine of The American Hotel + Lodging Association), p. 20-21.

Social Media in Mainland China – “bei hexie le”

What? Bei hexie le??? For your information, that is not a typo. In Mandarin Chinese, “bei hexie le” means “(something) has been harmonized.”

According to the Wall Street Journal report by Xiao Qiang and Perry Link, people in mainland China have to be very “creative” when communicating on the internet because the government is actively and heavily monitoring people’s conversation in the cyberspace. So, instead of posting “my wallet has been stolen” on the internet, one must use “wo bei hexie le” as a “synonymic but good” expression (translated into “I have been harmonized” for the bad accident happened to me). Otherwise, this kind of messages will be screened, and their voices will never be heard.

For a long time, I have known and accepted the fact that I cannot communicate with my family and friends in mainland China via social media. They have no access to Facebook, Twitter, or my blogs --- you can be the judge here and decide whether my blog is strictly business focus or promoting anti-China thoughts/activities.

Regardless, I have to admit that I am very impressed with the power of the Chinese government. How can it manage to literally cease the social media movement in a country of over 1.3 billion people? Can China continue to do so by stopping the social media movement in the history of human development? Very likely, China has the power to do that, but I wonder if such scrutiny on censorship will actually do more harm than good to the country and the Chinese citizens.

I am not a politician by any means, but I see social media as a very powerful communication tool for business. Business must actively engage with their customers and business partners on social media to stay competitive. Yes, there are times when people say negative things about the business, but social media is not about “controlling” or preventing what people talk about on the internet. Rather, business needs to take every feedback seriously and respond to the negative reviews in a professional way. Think positively, customers are providing the business an opportunity by providing negative feedback so that the business can address the issue before it becomes too big or too late.

Under the scrutiny on censorship in mainland China, my friends can occasionally jump over the firewalls and access their Facebook and Twitter accounts. There are two popular and so-called social media tools available in China --- Weibo, which is the only microblogging tool that is certified by the Chinese government, as well as WeChat, which is a mobile app for photo sharing, text messaging, and microblogging. I tried to sign up a Weibo account about a year ago. I was denied because I was using an e-mail address at Yahoo.com. I am now using WeChat to connect with my friends and family in China, but it does not seem like a real social-media tool to me because my friends cannot see any activities between my other connections and me. For example, they do not know if we have any shared connections or what I “like” or comment on WeChat; they cannot even join the conversation between my other friends and me on my wall (except the time when I initiate a group chat). Then, in what way can WeChat and Weibo help promote an international business?

There are advocates promoting a life-style with no texting, tweeting, or Facebooking. Maybe this group is exactly what the Chinese government is after.  

What do you think? Is the censor’s scrutiny helping the country and the people living there? Why or why not?

Other relevant discussions:

“SoLoMo” and Legislation

Starbucks and Pizza Huts: Time Has Come for a Rapid Expansion in Mainland China

The Biggest Challenge and the Hidden Opportunity of Entering the Chinese Market

Investing in Lodging Stocks in China

References:

Qiang, Xiao and Link Perry (2013, January 5-6). In China’s cyberspace, Dissent speaks code – What to escape the censor’s scrutiny? Call the regime a ‘heavenly dynasty.’ Just don’t get ‘happieness-ified.’ The Wall Street Journal, C3. Also available online on http://on.wsj.com/SqXeU0

The picture was downloaded from Geek.com.

Grooming Standards, Social Media, and Company Polices

I recently read two discussions about company policies on employees’ grooming standards and social media. I believe they both deserve our attention, especially if we are working in the service sector.

The first one is about a company’s guidelines on employee dress codes and grooming standards. Today, there are more people wearing tattoos and piercings than before. It is found that 32% of those between 25 and 29 wear at least one tattoo. Does this mean more companies will allow employees to uncover their tattoos and piercings at work?

I doubt it. Based on my own research on hospitality recruiters’ expectations of job candidates and my work experience in the industry, I believe the service industry is still very conservative in dress codes and very strict on employees’ grooming standards. The question is: What policy is deemed appropriate in the work place?

According to a recent report in the HR Magazine, strict work place dress codes may raise legal issues, especially when a tattoo or piercing “reflects a genuine religious belief.” In that case, “the employer must accommodate that belief unless doing so would impose an undue hardship on the business.”

The second discussion is a case about Facebook and legal issues. According to the Ogletree Deakins News, a salesman got fired by a car dealership because (a) he posted comments criticizing the way that the dealership had handled a marketing event with photos on Facebook and (b) he made critical comments about an accident that occurred during the marketing event by another dealership, which is run by the same company of his and located right next door. He then filed unfair labor practice charge against the dealership, “alleging both that he had been discharged because he engaged in protected concerted activities in violation of Section 8(a)(1) of the Act and that the company maintained several unlawful rules in its employee handbook.” So, what are the results?

The administrative law judge (ALJ) concluded that the salesman was discharged because of what he posted about the accident caused by the dealership next door, “and because that posting was not protected activity, the termination was not unlawful.” The ALJ, however, “considered the allegations that the employee handbook contained several policies that violated the ACT.” Three out of the four challenged “courtesy” policies on the dealership’s employee handbook are found unlawful and need modifications. One example of the unlawful policy reads:

Courtesy: 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 languages which injures the image or reputation of the Dealership.

On review, the National Labor Review Board (NLRB) agreed that the “courtesy rule” violated Section 8(a)(1) Act because “employees would reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language which injures the image or reputation of the Dealership’ as encompassing Section 7 activity, such as employees’ protected statement.” NLRB further explained that an employee’s “polite expression of disagreement could be deemed ‘disrespectful’ to the company’s reputation” under the courtesy policy. In the end, the company was ordered to “rescind the three rules and furnish all employees with the language of lawful rules or a revised employee handbook containing the new rules.”

I do not have any JD education, but it seems to me that many companies striving to provide professional and exceptional customer service (in a more “conservative” way at least) would set strict guidelines on employees’ grooming standards, their usage of social networking sites, as well as courtesy. It becomes obvious that we need to be very careful in writing an employee handbook. It is probably a very good idea to seek legal advice regarding the appropriate content and languages used in the handbook. HR professionals must be fair to everyone and apply the same policy to every employee.  

What practical implications do you see from these two cases? Are they worthy of our attention?

Relevant discussions:

What Is Your Company’s Dress Code for the Summer? 

Dress to Impress: “Old-Fashioned” Business Attire Still Works 

Professional Dress in the Workplace 

Average/Below-Average Looking People Can Earn as Much as the Attractive Ones 

Is It OK for Hotel Staff to Wear Piercings and Tattoos?

Do Tattoos Go Alone with Professionalism?

Social Media Policy 

References:

Deschenaux, Joanne. (2012, November). Workplace Dress, Grooming Codes May Raised Legal Issues. HR Magazine, p. 18.

Ogletree Deakins News – The Employment Law Authority. (2012, September/October). NLRB upholds Dismissal in Facebook Case, but Finds Employer’s Policy Violated Federal Labor Law. p. 1 and p. 6 (in a newsletter). 

Some Rules to Follow When Using Pinterest

Founded in 2009, Pinterst is BIG and here to stay. In February alone, Pinterest attracted 17.8 million unique users. As a matter of fact, I see at least one of my Facebook friends is getting on Pinterest every day.

People use Pinterest to share “collective ideas” on their pin boards, such as recipes, fashion, décor, and tourist destinations. For companies like restaurants and hotels, Pinterest is a great place to show case their products and services and draw traffics to their websites. Usually, it is not an issue if a user takes a picture and posts it on their pin board(s). The legal issue may arise when users share a picture or video that is produced and owned by somebody else. Accordingly, Therese Poletti at the Wall Street Journal provides some rules that users should follow:

• The safest way (especially for companies) is to pin the content that is created by the user or anything that the user owns the copyrights.
• Old photos that are dated in 1923 or before are safe.
• Posting a picture for recipes is fine “as long as you are creating the text of the recipe yourself” --- if one has cooked something with their own recipe, I actually feel it is safer to just go ahead and take a picture on his/her own.
• One must not have any intension of trying to profit off somebody else’s work if others’ picture or video are used --- companies may find it difficult to justify if they are pinning others’ work without giving the content owners the credit.
• Never claim somebody else’s work is the user’s own work.

The legal issues of sharing content on the internet could be very complicated. On one hand, people or companies may want others to “share” their content for publicity purposes; on the other hand, the content owners also want to protect their intellectual properties. Individual users may find it easier to justify that they have no intention of making profits out of the content they share on the internet. Actually, Pinterest enables users to give credits to the original sources by capturing the hyperlinks of where the pictures or videos come from. If I were running a Pinterest account for a company, however, I will be very careful by only posting something that the company created or owns the copyrights.

Are you on Pinterest? What are you experience with the website? If you share things on the internet but do not have the copyrights, what do you do to protect yourself from being sued by the content owners?

References:

Therese Poletti, 2012, March 14. Is Pinterest the next Napster? The Wall Street Journal, pp. B4. Also available online.