Cleveland Plain Dealer...
National Labor Relations Board sees increase in social-media complaints: Companies need guidelines
by Marcia Pledger
9/17/11 

A bartender was fired two months ago after complaining in a Facebook discussion with his stepsister about his job -- the absence of a pay raise in five years, his employer’s tip-sharing policy and the customers, saying he hoped they “choked on glass as they drove home drunk.” 

At Walmart, a worker was disciplined after a Facebook conversation in which he railed against management and its policies. 

In Cleveland, the United Food and Commercial Workers Union is accusing Rite Aid of Ohio of having an overly broad social networking policy. The union, which is on strike, also said the company’s use of an outside service to “track web traffic regarding Rite Aid” is a big concern. 

The increasing use of social media websites to voice job-related complaints are prompting new discussions about what is -- and is not -- protected in and outside the workplace.

Last week in New York, the first case involving Facebook that resulted in an administrative law judge decision following a hearing, is generating even more buzz about social media sites and employee conduct. 

In that case, a judge ordered that a nonprofit organization rehire five employees who were fired after they made negative remarks on Facebook about a colleague they say was not pulling her weight in helping clients. Most social media complaint cases either are settled or are withdrawn before any kind of judicial review. The employees’ also criticized their workload and other staffing issues. 

The nonprofit, Hispanics United of Buffalo Inc. which provides social services to economically disadvantaged clients, said it fired the workers because it considered their Facebook comments as employee harassment. 

“When you start looking at individual conduct verses concerted activity, social media really blurs the line,” said Jonathan Hyman, a Cleveland labor and employment attorney with Kohrman, Jackson & Krantz. “People don’t post on Facebook or Tweet or blog to have conversations with themselves. They’re doing it to engage with other people.” 

Tony Wagner, new media spokesman at NLRB, said the New York decision “is a start in establishing case law.” 

The board recently issued an analysis of sample social media cases. Many of the cases before the board involve complaints that employers have overly broad policies restricting employees’ use of social media, or that employees have been unlawfully fired or disciplined. 

The NLRB analysis said when one employee is simply griping about such issues involving a boss, work schedule or salary, then that employee’s actions generally are not protected, said Wagner. But when those actions involved more than one employee complaining about working conditions, those actions are protected. 

The U.S. Chamber of Commerce, the nation’s largest business lobbying group, said there have been about 130 cases filed by employees since 2009 involving social media and the workplace. 

Some of the workers who have been disciplined for their social network posts say their comments are protected under the 1935 National Labor Relations Act, which allows employees to discuss working conditions in general. And often lawyers contend talk on social media sites are no different from office watercooler conversations -- only that those comments are more permanent and viral. 

“I think it means businesses need to tread very carefully in implementing policies that address employees’ use of social media, both in the workplace and outside the workplace,” said Hyman, who is also author of “Think Before You Click: Strategies for Managing Social Media in the Workplace.” 

In the United Food and Commercial Workers Union’s contention that Rite Aid’s social networking policy is too broad, labor union attorney Eben McNair, of Schwarzwald McNair & Fusco in Cleveland, said the policy “gives the impression of surveillance . . . And they didn’t bargain in good faith over the implementation.” 

Rite Aid spokeswoman Ashley Flower would not comment, saying the company does not comment on pending litigation. 

While social media disputes and issues vary considerably, a growing number of companies are finding it necessary to revisit employee handbooks and create social media policies. 

Deby Cowdin, owner of From the Blue Bag, a 5-year-old Cleveland company that turns recycled bottles into food-functional dishes, modified her handbook in January to address social media challenges. 

Cowdin made the change after a fired employee was able to claim unemployment because the company handbook did not specifically mention social networking sites. Just saying you cannot use a company computer for personal use was too vague. 

Even though Cowdin continues to fight the unemployment claim, she learned a lesson. 

“I’ve run several companies and worked for corporations, but one thing I’ve learned is you have to modify your business with the times,” she said. 

Read it at the Cleveland Plain Dealer