HRExaminer v3.38 September 21, 2012
Table of Contents
The National Labor Relations Act (NLRA) applies to all employers and protects employees’ rights to “protected concerted activity.” This means that employees get to talk to each other about their wages, hours and working conditions and to take actions together to form a union. The National Labor Relations Board (NLRB) has interpreted these rights very broadly, and has found that many standard policies violate the NLRA, especially social media policies.
Some of the policies that NLRB says are illegal and overbroad include:
- At-will statements in employee handbooks, especially if they say that only the employer can modify at will employment. This potentially precludes collective bargaining agreements that contain “for cause” termination clauses. Most do.
- Confidentiality requirements about wages and investigations.
- Non-disparagement clauses, especially if they forbid saying bad things about the company or your boss.
- Social Media policy provisions that restrict or forbid “offensive, demeaning, abusive or inappropriate” posts or being “friends” with co-workers or supervisors, and telling employees to make sure social media posts are “completely accurate and not misleading.”
- Arbitration clauses (no loss there, but that’s a separate article).
What Is and Isn’t Protected?
Say you are a restaurant and one of your waitstaff gets mad about a tip and photographs the customer charge slip, then posts it on twitter complaining about the customer. You have a policy that says employees cannot make disparaging remarks about the company or its customers on social media.
At this point, it’s an employee complaining about a customer’s discretionary action, and it’s directed to the whole world. It is not a complaint about the employer’s wages, hours and working conditions to another employee. So it is probably a personal gripe and unprotected under the NLRA.
You can’t have waitstaff posting customer names and charge slips on twitter with nasty comments about the tips (even if it only shows the last four digits of the credit card number). So you call her in, tell her it was a really, really bad move, cut her hours for a week, and tell her if it happens again, she’s fired.
The employee then gets on Facebook and calls you nasty names, and tells all her friends not to go to that restaurant any more. She happens to be friends with about ten other people who work there. The co-workers chime in and offer sympathy. Then the discussion evolves into complaints about their schedule, breaks, the managers, the watered down cocktails, and how much they hate bad tippers.
Someone takes a screen shot of the discussion, prints it out and brings it to you. Fed up with the drama and really angry about the names you were called, you fire the employee.
She then brings an NLRA charge claiming she was terminated for her Facebook posts that were protected concerted activity. You point to the original customer post as well as the company social media policy that prohibits disparaging remarks.
Because the Facebook discussion was between co-workers complaining about wages, hours and working conditions, there is probably enough there to find that it was protected. The discussions criticizing the customers and cocktails may not be protected, but that won’t help you if at least some of the discussion IS protected.
You probably could have fired her for the initial Twitter post about the customer. But by waiting and pointing to the social media policy, you now have a NLRA violation to deal with.
What’s the Damage?
If someone complains that your policy violates the NLRA, the NLRB can review it, tell you where the problems are, and order you to change it. This is essentially a fix-it ticket. Not that big a deal.
The big deal is when you fire someone under an illegal social media policy. The remedy for terminating an employee for protected activity is reinstatement with back pay, senority and benefits. You may also have to post the NLRB decision. So now you have the last person you ever want in your restaurant back there. And you have to write her a really big check.
While a settlement is possible, the NLRB usually proposes both reinstatement and back pay. Any private settlement has to be approved by the NLRB before it will resolve the charge.
If a company is unhappy with the NLRB determination, it can appeal to federal court. But that would include a bond, continuing back pay if you lose, the cost of litigation, and your attorneys fees. (It’s possible, but unclear, whether you could also have to pay the other side’s attorneys’ fees if you lose.)
This isn’t quite as bad an an EEOC suit where you may also have to pay front pay, punitive damages and the employee’s attorneys’ fees. Still, you don’t want to have to go there.
What To Do
- Fire people for what they do, not for violating policies. Policies don’t prevent bad acts.
- Fire as soon as you know it’s not working out. Second chances, especially for misconduct, rarely work out.
- Understand that the more you try to control social media, the more it is going to backfire. California and other states have laws that make it illegal to discipline employees for off-duty conduct. So policies that tell employees what they can and cannot do on their personal Facebook pages will violate those laws. And under agency law, the more you control what employees do, the higher the chance you will be liable for it.
- Look at your policies and see where they can hurt you more than they help you. Especially look for broad language that gives the company control over employees’ actions away from work, discussions with other employees, or control over what employees can and cannot say about work and the people there. While you’re at it, get rid of your probation periods, progressive discipline, and entire social media policy.
- Figure out what you really want your employees to know and understand and teach them. Don’t just issue a policy manual.
If you would like to know more about potential pitfalls of employment policies, see my posts:
The best book out there on dealing with discipline, termination, and employment policies is Firing at Will by Jay Shepherd.
Also look for Donna Ballman’s new book from the employee perspective: How to Stand Up for Yourself Without Getting Fired (which I haven’t read yet, but will be reviewing soon.)
- 13 Tech Trends to Adopt Before Year’s End
A panel of young entrepreneurs recommends that you pay attention to these 13 areas. It’s worth a scan as a reminder of the changes that you are immersed in.
- Mobile Recruitment: Morning Mind Control
From the UK’s Felix Wetzel comes the first intelligent piece of writing on mobile recruiting. So far, every single piece of material on the subject has focused on replicating existing approaches and workflows. That’s exactly what mobile isn’t going to be. Wetzel (citing a great HBR article) takes a run at looking at the various states of mobility in which users of touch devices are going to operate. Portable touch rectangles will revolutionize recruiting. But it will happen because the new way is useful, not because it’s cool.
- Understanding Urbanity
Great HR thinkers study cities. Why? Because that’s where most workers live. Being able to
harness the dynamics of the region in which the plant is located can turbo charge productivity. This article provides a good grounding by reviewing seven critical works on the topic.
- The Rise of Teleworking and What it Means
While the center of attention has moved on to the latest shiny new toy, workers are increasingly doing it at home. (Be sure to read Slate’s Is Telecommuting a Good Idea?). For reasons of productivity and carbon-consciousness, more and more people are working from home. The typical teleworker is a 49-year-old, college-educated, salaried, non-union employee in a management or professional role, earning $58,000 a year at a company with more than 100 employees. One way of thinking about the accelerating trend is that it integrates the suburbs into the urban environments that are increasingly where the workers actually are.
- The Story of a Hire
This infographic demonstrates what effective information marketing loooks like. It’s the tip of the iceberg in a new wave of quantitative candidate behavior evaluation (see Felix Wetzel’s work above).
Lookup: The TalentBin iPhone App
Download the TalentBin iPhone App.
If you’re headed to a meeting or out and about, this is a fantastic tool for finding and finding out about someone from your phone. Lookup (as it’s called) gives you access to the TalentBin database from your phone. For free.
It’s easy to imagine salespeople sneaking into the restroom to scope out the people in the ongoing meeting. Lookup will give you pieces of facebook, resume and other data. It’s fast.
If you haven’t heard of TalentBin, keep your ears open. The Silicon Valley People Search Engine is trying to establish a sourcing beach head by grabbing info from the places where people are active online. The database contains profiles from Facebook, Twitter, LinkedIn, Google+, Pinterest, Quora, Meetup, Github and others. Recently, they added the entire US Patent Database.
As part of the talent discovery process, TalentBin aggregates a candidate’s “implicit” professional activity: the skills and interests they reveal across social networks like Facebook, Twitter, Google Plus, Meetup, Quora, and more that might not make it to their resumes. Coupled with other industry-specific social communities like Github, Sourceforge, and Bitbucket for software engineering, for example, this bolsters passive professional profiles with information that’s vital to helping recruiters determine ideal job fit. The result is a more accurate, 360-degree view of a candidate that covers everything from professional skills to personal interests. TalentBin then takes it one step further, compiling all contact information such as email addresses, Twitter handles, and more to help facilitate direct candidate engagement. (From a press release)
This means that you can search for people who actually use social media by their interests and professional behavior.
Each of the partnerships features a deep integration with TalentBin operating as a sourcing front end to each of these different approaches to Talent Acquisition.
At the heart of the operation is TalentBin’s cofounder Pete Kazanjy. Pete is one of the most extraordinary entrepreneurs to ever enter the Recruiting/HR scene. He’s one of those guys whose tireless enthusiasm makes impossible things easy.
We’re betting that TalentBin is the core of one of the next decade’s great plays in the sourcing data management arena.
Internet News: The Perils of Automation
For a number of years, I’ve been trying to get home delivery of the New York Times. Bodega Bay is a long way from most things. Every time I tried to order a subscription, I was told they didn’t deliver out here.
I love living here at the edge of the world but, it’s got its price. It takes most of a day to do anything that involves a trek to civilization. Groceries are a project. There’s no local coffee shop.
Generally, that’s a small price to pay for life at the beach.
I have good friends who are hummingbirds. Bobcats hunt in the fields across the street, overlooking the ocean. Our last batch of house guests got to watch a Great Blue Heron hunt, catch and eat a gopher. The night air is full of the noises of harbor seals and sea lions. People are pretty scarce.
It’s foggy 200 or so days of the year. The fog limits visibility to 10 feet at times. There are weeks when it doesn’t burn off. Beautiful in itself, the fog wraps everything colorful and makes it gray. We’ve got a couple of those intense blue lights that are the antidote to Seasonal Affective Disorder.
But, the beach is usually empty. I can watch the ebb and flow of life, death and the seasons as the fishing fleets change and birds migrate in and out. I usually have the beach to myself when I walk it.
It also means that I am stuck with the news I can get on my computer. For all of the years that I’ve pined for an actual readable physical newspaper, I’ve been tweaking my Google News account. Several times a day, I click over to catch the news courtesy of the Mountain View folks who run most everything else on my desktop.
What I get is a very personalized flow of news, targeted at me, featuring the most popular articles in the niches I’ve asked for. What I don’t get is the opportunity to discover something outside of my little bubble. There is a Vanilla sameness to the information flow that reminds me of the fog.
You might imagine that the problem is magnified by the emptiness of the local terrain.
Somehow, the Sunday New York Times arrived in the driveway today. It was wrapped in layers of blue plastic to keep the dampness away .I didn’t believe it at first. I guess there’s another attempt to civilize these backwaters.
I opened the paper on the dining room table. News, Opinion, Business, Arts, a Magazine, Sports, in Depth Reporting. Some news and some of that other deeper stuff. It covered the table with possibility and opportunity. I scanned and grazed, overwhelmed by the bulk.
Even with steady diet of 27 inches of pure MacIntosh goodness in a brightly lit display, I was unprepared for stories piled ten pages deep across the entire table. I’d almost forgotten how to read the thing.
You read a newspaper by opening it up and deciding which of the stories on a given spread (that’s two full pages opened together) to read. Look, sample move forward, go back. Consume a bit, let it ferment and then go back and consume some more. It was not a very internet like experience.
On the web, I get lots of direct answers with none of the fun of wandering around on the way to finding them. It’s not that I don’t wander, it’s that I can’t ever find my way back. If I want to retrace my steps, it’s a mind wrenching pain in the butt. Where the internet takes me down infinite rabbit holes that lead to other rabbit holes, the physical newspaper restricts me to a repeatable piece of geography.
The physical constraints of an actual newspaper limit my choices. In doing so, they increase the likelihood that I’ll consume information that is not directly related to my stated interests. Today, I learned about the election in a way that doesn’t seem possible online. I found out that debt collectors are signing deals with local DAs to use the DA letterhead for collections. I learned about the five major trends in Chinese governance. I got more sides to the past week’s foreign policy bugaboos.
I feel like I learned something in the process of consuming the news. It was more than a thread of direct answers to my direct questions.
There’s a point here.
Automation strips the fuzzy stuff out of relationships to turn them into transactions. In that process, things get much more efficient. It’s less clear that we understand what we’re leaving behind.
We’re entering the time when the fundamentals of HR are all automated. How are we going to talk about the stuff that doesn’t fit a software workflow? How are we going to find the things we used to trip over in our inefficiency?
The rapid pace of technological change is making it possible for us to have some really interesting conversations. But, it looks a lot like the internet news right now. If it isn’t precisely germane to the task at hand, it’s not covered.
That’s how myopia begins.
Startup Compensation Guide
While it’s not quite exploding, there’s a frenzy of activity in the startup world. As the deck chairs rearrange themselves and new players get introduced, the whole compensation question is veiled in mystery and supposition. It’s quite odd that an arena so clearly focused on financial return wouldn’t extend that reality to employees. While it suits the suits, the worker bees want equitable pay and equitable equity.
Information is the missing piece.
Wealthfront, a software based financial advisory service is releasing an embeddable tool that compares salary and equity compensation packages for non executive level employees who work in startups. It’s a nicely designed tool that goes straight to the intersection of cash and equity.
This is another case of the changes that are coming to the HRTech and Data marketplace. Even as Oracle, SAP and IBM gobble up the middle (to put a fence around Workday), new products and services are emerging from surprising sources. It’s a great idea.
And, the service is really useful.
Wealthfront makes its living managing the investments of people who hit it big in Silicon Valley. Like their brethren in the Venture Capital business, they basically have no idea who will and who won’t make it. So, they have to spread their reach as far as they possibly can.
What they know for certain is that they want to be allied with the people who might hit the lottery. Expect to see other helpful services from similar sources.
By giving the startup world real access to salary data, Wealthfront is playing both ends against the middle. Arming employees with the real data of a transparent market helps those employees get a better deal from their companies who are funded by VCs most of the time. It seems pretty likely that Wealthfront will be supply some of the cash in those very same VC funds.
Earlier this year, a real estate firm (Cushman and Wakefield) was the driving force behind the War for Talent conference. 250 Silicon Valley recruiters and 25 startup CEOs spent the day talking about ways to find, harvest and develop the right talent. The real estate firm simply asked its clients what their biggest problem was. The answer, finding good people. So, they organized the conference for clients and potential clients.
This is the sort of thinking that will ultimately turn HR into a profit center.
The things we know as an industry are extremely valuable to other parts of our ecosystems. Figuring out how to marry the two is the essence of building 21st century HR services.
It’s the same sort of thinking required to really make sense out of big data and anlytics.