We are all constantly trying to figure out the limits of employees’ rights when it comes to their social media postings. But what about employers’ rights? Those rights seem to be less and less these days. But a new case involving LinkedIn helps employers draw a new line in the sand …
Case in Point: A supervisor at a New York law firm invited one of his employees to connect with him on LinkedIn, a social media networking site for professionals. The employee didn’t yet have a profile, so he created one that included his name, employer and title. As a "joke" he listed his job title as a "F*cktard." The employee thought only his supervisor would be able to see his profile. In reality, it was open for all to see.
A couple months later, the law firm started investigating creating its own LinkedIn page. During that time, it discovered the employee’s page that listed the company’s name and his position as a "F*cktard."
Needless to say, the law firm didn't get the joke. It fired him for violating the company's electronic communications policy that prohibits online activities that are “obscene, defamatory, harassing or abusive."
The employee defended his actions, claiming he was engaging in protected concerted activity under the National Labor Relations Act in two ways. He said the LinkedIn posting was protected. He also said he was being retaliated against for inter-office discussions with co-workers about inequities in the company’s overtime policy.
What happened next … and what lessons can be learned?
The National Labor Relations Board ruled in favor of the law firm for several reasons. First, the firm never knew about the employee’s conversations regarding wage-and-hour issues. Second, the posting of "F*cktard" as a position on the LinkedIn site is not a protected concerted activity because it wasn’t related to his working conditions or terms of employment. (Schulte, Roth & Zabel, NLRB Div. of Advice, 10/13/11)
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3 Lessons Learned … Without Going to Court
1. Have an electronics communications policy. Courts look at company policies as "house rules." As long as those policies are legal, the courts support companies who kick employees out for breaking the rules.
2. Understand the context. The court noted that the employee did not use the term “F*cktard” in connection with conversations about the firm’s working conditions. Had that been the case, the posting may have been “protected” under the NLRA and there probably would have been a different outcome.
3. Do the HR Huddle. These social media cases are coming down like a splatter graph … all over the map. Therefore, seek multiple opinions from other HR professionals and legal counsel.
Twitter, Facebook and LinkedIn have had a major impact on the way people interact and communicate. And as an HR professional, it’s up to you to understand and set rules for these social-media technologies in the workplace.
Unfortunately, the impact is not always positive. Improper use of social media at work can damage morale … hurt productivity … and even expose your company to a lawsuit. And that’s all the more reason you need to be aware of both the opportunities and the pitfalls of social media.
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