NLRB Gives You Another Reason to Avoid a Social Media Policy

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Remember when I said that you don’t need a social media policy? That using existing guidelines for dealing with employees who mess up on social media is going to be a lot clearer to understand? Did you read that post and think to yourself, “Yeah, whatever. Of course we need a social media policy!”

Here’s some bad news for you today (via the blog of the Legal Times, emphasis mine):

The NLRB’s Hartford office sued American Medical Response of Connecticut, Inc., alleging that the ambulance service illegally terminated the employee, Dawnmarie Souza for the postings, and that the company wrongfully denied her union representation during an investigatory interview. NLRB also charged that the company “maintained and enforced an overly broad blogging and Internet posting policy.”

Why are we still getting tripped up here?

This isn’t a “Facebook case”

What I’m afraid of is that this will be billed as the Facebook case where all HR pros learn to run and hide from. Imagine this scene: a big lawyer comes into your SHRM luncheon and says snooping on a person’s Facebook account got them in trouble with the NLRB.

Case closed, right? Never go on Facebook again! For dramatic effect, you can run and scream from your computer if you accidentally drop onto one of your co-workers pages.

What the big scary man won’t tell you is that while Facebook was definitely an aspect of the case, it wasn’t the reason they got in trouble. In fact, having that overly broad social media policy actually hurt their chances of evaluating this case with regard to all of their other considerations.

Dealing with unions and concerted activity

What seemed to trigger this case was that the employee was complained about by a customer and the company asked her to write up an incident report. Since she was represented by a union, she asked for a union representative and was allegedly denied and disciplined for the request. She later went to complain about the supervisor on Facebook and other co-workers chimed in to complain about it. Word got back to the supervisor and three weeks later, she was gone. Where were the problem points?

First, they didn’t allow union representation when she was dealing with an issue that had possible disciplinary measures attached to it. Now I don’t know what their union contract looks like but I’m just taking a wild guess that it allows for a union representative to be present. Second, it appears as if they disciplined her for asking for union representation. Denying it is one thing but disciplining for it? Third, they possibly let their social media policy trump the law.

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This is HR 101 stuff. If an employee is complaining about a supervisor with other employees (even if it is in a break room, at lunch, in a bar after work or, yes, even on Facebook), you better make sure that it couldn’t be construed in any way as protected activity.

Of course, the company denies it and believes it is baseless. And it may be. There is a court hearing in early 2011 to sort some of it out.

If it happens on Facebook, how would you handle it in real life?

What I can tell you is that Facebook is part of real life. When things like this happen, it shows that there are real consequences to employees (and now employers) about what shows up there.

The tendency is to always think of how to handle that in a new way. I can’t guarantee that the company in this case would have done better without a social media policy but they might have thought more critically about what their actions would look like and whether that was the message they intended to send.

Avoid the new policy that every social media consultant tries to sell you on and inject a little common sense, critical thinking, and real world meshing into the online world way of thinking.

Lance Haun is the practice director of strategy and insights for The Starr Conspiracy, where he focuses on researching and writing about work technology. He is also a former editor for ERE Media, broadly covering the world of human resources, recruiting, and sourcing. 
He has been featured as a work expert in publications like the Harvard Business Review, The Wall Street Journal, Fortune, MSNBC, Fast Company, and other HR and business websites.
He's based in his Vancouver, Wash., home office with his wife and adorable daughter. You can reach him by email or find him off-topic on Twitter.