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Social media policies: not all are legal, employers take note

Through examination of several cases of people being terminated or disciplined for their social media activity, the NLRB offers a major distinction between protected concerted activity and unprotected whining.

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Social media policies: legal or unlawful?

According to the National Labor Relations Board (NLRB), seven cases cases have been analyzed by Acting General Counsel Lafe Solomon, all of which involve questions regarding employer social media policies, finding that five of the policies were found to be unlawfully broad, one was found to be lawful, and the NLRB found the remaining case to be lawful, but only after it was revised.

Seven other cases involved discharging of employees after posting comments on Facebook. Most of these discharges were found to be unlawful, but in one case, the discharge was upheld despite an unlawful policy, because the employee’s posting was not work-related.

The NLRB says the two main points are that “Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees,” and that “An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.”

Although the reports do not name names or companies, the NLRB says they illustrate that these types of cases are extremely fact-specific.

How the NLRB determines legality of repercussions

When employees make comments on social media and are disciplined or even fired, it’s not always a legal move, because under Section 7 of the National Labor Relations Act (NLRA), employees’ right to engage in “concerted activity” for mutual aid and protection in the workplace is protected.

The way the NLRB tests whether or not Section 7 has been violated by the employer is whether the activity is “engaged in, with, or on the authority of other employees, and not solely by and on behalf of the employee himself,” adding that employers also cannot prevent future discussion regarding employment.

Two cases the NLRB ruled were unlawful termination

In one case, a seven year employee at a collections agency posted disparaging comment laced with cuss words as a Facebook status update about her employer after getting transferred to a lower paying division, despite being the second highest performer. Co-workers and past employees commiserated, one even suggesting a class action suit, with her noting that they’d rather pay $9 per hour employees than knowledgeable, experienced employees, making themselves legally vulnerable.

The next day she was let go. The NLRB ruled her termination as unlawful, noting that the termination was in retaliation for her protected future concerted activity, further ruling that the company’s rule prohibiting “making disparaging comments about the company through any media, including online blogs, other electronic media, or through the media” was overly broad, ruling that her comments didn’t interfere with her or her co-workers’ work.

In another case, a woman was ignored by human resources when she complained that a Manager made a sexist joke, noting that he assumed she missed the day prior due to a snowstorm, as he joked that he knew none of the women would be able to make it to work. The next day, she took to Facebook stating that she can handle sexist remarks, but not one that says she’s less of a person because she’s a woman. One witness who is a Supervisor commented on her status update, and another commenter urged her to take further action.

Later, the company President advised the employee to not get upset and stop being concerned over employees losing their jobs, which she said on Facebook was happening because of employee concerns over conditions, which she told them to simply document in an effort to improve the situation. The President printed out her Facebook update, fired her for disobeying when he told her to butt out, and noted that she used Facebook during company time, using company resources (although she proved she’d done it from her cell phone).

The NLRB ruled the termination illegal, as she was fired for her protected concerted activity of engaging in discussions with her coworkers about working conditions and the NLRB further noted that the employer terminated her as a “pre-emptive” strike in fear of what the discussions would lead to.

One case the NLRB ruled as lawful disciplinary action

A respiratory technician at a children’s hospital who worked as part of the transport team was taken off of the transport team and disciplined after a series of events related to her comments on Facebook. First, she made disparaging comments on Facebook about a coworker, annoyed that he was sucking his teeth during transport, adding that she was about to “beat him with a ventilator,” she was so annoyed. On the same trip, she casually asked the patient’s mother if anyone had informed her that her daughter was autistic (based on behavior of her autistic stepson).

On the way to lodge a complaint about telling a mother her child was autistic, the teeth-sucking coworker was shown the Facebook status update, adding fuel to the fire. During the investigation, it was uncovered that she had made another recent comment disparaging coworkers, saying that respiratory therapists don’t know what they’re talking about, which she explained to her employer was a sarcastic response to her feeling disrespected.

The NLRB ruled it was not in concert, and not protected under Section 7 of the Act, rather strictly about her personally, not addressing general work conditions, and no coworkers ever commented on her updates. It was ruled she was not seeking to induce collective action, rather she was just complaining, which is not protected under the NLRA.

The takeaway

Social media policies can be too broad, the NLRB states, but even when specific, employers may be unlawfully firing employees, specifically when comments are regarding work conditions and meant to induce concerted activity with other workers, a law that goes back to days of collected union activities.

While these laws may ultimately be updated to reflect a more modern society, for now, employees are not protected for complaining or defaming, but are most definitely protected when rallying against work conditions with coworkers.

Full NRLB report:

Lani is the Chief Operating Officer at The American Genius and sister news outlet, The Real Daily, and has been named in the Inman 100 Most Influential Real Estate Leaders several times, co-authored a book, co-founded BASHH and Austin Digital Jobs, and is a seasoned business writer and editorialist with a penchant for the irreverent.

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3 Comments

3 Comments

  1. tcombs

    January 23, 2013 at 5:08 pm

    I think you may have meant UNlawful…

    The next day she was let go. The NLRB ruled her termination as lawful, noting that the termination was in retaliation for her protected future concerted activity…

  2. Lani Rosales

    January 23, 2013 at 7:00 pm

    Good catch, we’ve fixed it, thanks!

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Social Media

Facebook’s Résumé takes another shot at LinkedIn

(SOCIAL MEDIA) Facebook took another swipe at LinkedIn by introducing a new Résumé feature.

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Any job hunter is likely familiar with the little section somewhere during the application process where you’re asked to enter in social media information. Thankfully, Facebook is usually an optional field.

While I try to keep what the public can see of my social media profiles toned down enough as to not cause my grandmother to blush, I’m still not quite comfortable sharing my profile with prospective employers.

I’m sure many out there feel the same, and Facebook knows this.

Tinfoil hat theories aside, LinkedIn may be shaking in their boots as Facebook begins to advance their growth in the professional sector in their pursuit of social media domination.

Facebook has begun experimenting with a new Résumé/CV feature that works as an extension of your standard “Work and Education” section on a Facebook profile page, allowing users to share work experience in more detail with friends and family but most importantly: potential employers.

Luckily, the new Résumé/CV feature won’t be sharing personal photos or status updates, but will rather combine all the relevant information into a single, professional-looking package.

So far this feature appears to be rolled out to a small number of users, and it’s unclear when it will be officially launched, but this isn’t the first time Facebook has dipped their toes in the waters of the job sector, or took a jab at LinkedIn.

Several months ago, Jobs was launched, a feature that allows Business Pages to post job openings through the status composer, and keep track of them on their Page’s Jobs tab.

A Facebook spokesperson commented on the intent behind the new Résumé/CV feature, “At Facebook, we’re always building and testing new products and services.

We’re currently testing a work histories feature to continue to help people find and businesses hire for jobs on Facebook,” and so this is just the beginning of Facebook’s plan to become a one-stop-shop and create a more seamless way for people to find and get jobs.

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Tag photos, connect with friends, order food?

(SOCIAL MEDIA) Facebook seems to be sprawling into every nook and cranny of life and now, they’re infiltrating food delivery.

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Facebook is now bringing you food! Although, no one was really asking them to.

In the age of Instagram and Snapchat, Facebook is attempting to transform into more than just a social media platform. They have partnered up with food delivery services to help users order food directly from their site.

They hope to streamline the process by giving users a chance to research, get recommendations and order food without ever leaving the site.

Facebook has partnered with their existing delivery services including EatStreet, Delivery.com, DoorDash, ChowNow and Olo in addition to restaurants to fast track the process.

The scenario they imagine is that while scrolling through the newsfeed, users would feel an urge to eat and look to Facebook for their options.

After chatting up friends via Facebook Messenger to ask for the best place to go, users would visit the restaurant’s page directly, explore their menu and decide to order. When ordering, you will have the option to use one of the partnered delivery services either with an existing account or by creating a new one.

The benefit is you stay on one site the entire time. With the time you save, the food can get to you faster, which is a plus for everyone.

Assuming that people already live on Facebook 24/7, this seems like a great update. If you like getting recommendations from your favorite social media resources, it’s even better.

The problem is that in recent years their younger audiences have dropped off in favor of other sites. Regardless of what they think, not everyone is flocking to Facebook for their every need.

My guess is that this service will benefit those already using Facebook, but is less likely to draw new audiences in.

Adding more services may not be the key to success if Facebook can’t refine their other features. They have already been criticized for their ad reporting practices, though they seem to fix everything with a new algorithm.

Facebook has continued to stray away from their original intent, and food delivery won’t be their last update.

Facebook wants to be everything, but not everyone may want the same.

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Social Media

Hate Facebook’s mid-roll ads? So does everyone else

(SOCIAL MEDIA) Those pesky ads that pop up in the middle of that Facebook video, aka mid-roll, seem to be grinding everyone’s gears.

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In an ongoing effort to monetize content, Facebook recently introduced “mid-roll” ads into videos by certain publishers, and it has now been testing that format for six months. If you aren’t a big fan of those ads interrupting your content consumption experience, you aren’t alone; publishers aren’t crazy about them either.

In a report on the program, five publishers working with Facebook’s new mid-roll ad program were sourced and all five publishers found that the program wasn’t generating the expected revenue.

One program partner made as little as $500 dollars with mid-roll ads while generating tens of millions of views on their content.

Two other partners wouldn’t specify exact revenue number, but they did acknowledge that the ad performance is below expectations. As far as cost goes, certain publishers mentioned CPMs between 15 cents and 75 cents.

That range is large because a lot of the data isn’t clear enough to evaluate their return on investment. According to the Digiday report, publishers receive data on total revenue, along with raw data on things like the number of videos that served an ad to viewers.

The lack of certain data points, along with the confusing structure of the data, makes it difficult to assess the number of monetized views and the revenue by video. For context, YouTube, as arguably the biggest player in video monetization, provides all these metrics.

Another issue is that licensing deals are cutting into margins. Facebook pays publishers, via a licensing fee, to produce and publish a certain number of videos each month. In exchange, Facebook keeps all money until it recoups the fee, after which revenue is split 55/45 between the publisher and Facebook.

While these challenges doesn’t change the fact that revenue is low, it does make it difficult to dissect costs in a meaningful way.

Why is revenue so low to begin with?

For starters, a newsfeed with enough content to feed an infinite scroll probably isn’t the best format for these kinds of ads. As a user, when I’m watching the videos and the ad interrupts the experience, I’ve always scrolled right on through to the next item on my feed. It’s a sentiment echoed by one of the publishers in the Digiday story.

Because of that, Facebook’s new Watch program, which creates a content exclusivity not found on the news feed, might produce better results in the future. Either way, Facebook will need to solve this revenue challenge for publishers, or they might pull out of the programs altogether.

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