HRExaminer v3.42 October 19, 2012
Table of Contents
You know you can probably get fired for telling your boss to her face “Go to hell.” But complaining about her on Facebook can be protected speech. So what are employees’ rights to say things at work, and when can an employer control what is said?
No Constitutional Free Speech At Work
Employees don’t have a Constitutional right to free speech or freedom of expression at work. The Constitution’s right to free speech only applies when the government is trying to restrict it. Even then, it’s not absolute. There is no free speech in your house; ask your mom. And there is no legal right to free speech or expression at work. (If you work for the government, there is a special set of rules that apply.)
So employers are generally free to restrict employee speech, at least while they are at work.
But Laws and Contracts Can Control When and What Gets Said
Some restrictions on speech are required by other laws. Laws prohibiting discrimination and sexual harassment, and laws protecting confidential medical and financial information prohibit employees from saying all sorts of things at work. Insider trading and trade secret laws prohibit employees from giving out certain information about company finances and transactions during certain times. Whistle-blowing is also protected speech, but it has to be based on the employer’s violation of a statute-not just doing something mean or unfair. Depending on the work, there may also be security clearance issues, contractual nondisclosure, and other policies that require silence.
Protected Speech Under the NLRA
Employees’ protected speech under the National Labor Relations Act (NLRA) is actually an exception to an employer’s broad rights to restrict both speech and expression at work. Section 7 of the NLRA gives employees the right to discuss wages hours and working conditions and organizing a union.
Just calling a boss or another employee names isn’t protected under the NLRA. There is a distinction between complaints about working conditions and personal gripes. Saying the supervisor is a wing-nut, even to another co-worker, is probably not protected until there is something more that shows the employee was trying to get other employees to change working conditions. While getting rid of a bad boss would certainly change the work environment, just calling her names won’t. So name-calling is usually a personal gripe, and not protected.
What employers can’t do is issue broad policies that prohibit employees from saying bad things about the company or the people in it- because that violates the NLRA. It’s the broad policy that’s the problem, rather than the specific statement.
Figure Out What The Real Concern Is
There is often cross-over between the employer’s legitimate interest in protecting its business and following its legal and contractual requirements, and the employee’s interest in discussing wages, hours and working conditions with other people at work. It all involves the work of the company. And sometimes it’s really hard to separate them out—which is why some of the decisions coming out of the NLRB don’t seem to make sense.
When employee speech is involved, it’s best not to start with policies or edicts. Figure out what the real concern is.
If it is protecting trade secrets, avoiding SEC violations, or protecting employee safety, start there. Remind or teach employees what a trade secret is, what defamation is, or why checking in on Four Square as you make the bank deposit is a really bad idea.
Explain why any restriction is important to the company. Telling people why something matters, gives them the ability to use their judgment when they come up against a situation that wasn’t covered. Then trust people to do the right thing. If they don’t, deal with it on a case-by-case basis.
Focus on what happened, not whether a policy was violated.
Employers Generally Can’t Control What Employees Say Away From Work
With social media, employers are often concerned about employees posting something negative about the company, its clients or employees. So lots of social media policies try to discourage, or just outright forbid, saying bad things online. This is where the policies get in trouble with the NLRB.
Some states, like California, also have laws that protect employees from being disciplined for the things they do or say off the clock. There are narrow exceptions if the conduct directly affects the company; but it has to be a pretty big deal that causes actual damage to the company. So if someone tweets that the boss is a douche bag, they generally can’t be fired if it was on their personal account while off-duty.
Now that everyone can tweet from anywhere on their smart phones, and people are working from many places at discretionary times, this distinction will get tricky.
Also, employers are not usually liable for what their employees do off-duty unless they are controlling it. So the more an employer tries to prevent being liable for employee actions by issuing policies, requiring disclaimers, and disciplining people for what they say and do on their personal social media accounts, the more likely the employer will end up being liable.
Controlling Speech Won’t Solve the Real Problems
If what the company is really worried about is looking bad, then it should probably look deeper to see if there are things going on that would make it look bad. If so, it’s not a social media problem, it’s a management problem. And policies and controlling what people say are not going to help.
There is no way to stop current or former employees from trash talking on social media. Employers shouldn’t try. It just creates a culture of monitoring and suspicion. Discipline, denials, and drama just make it worse. Social media is fast moving and things pop up and die quickly if they are ignored.
The best way to encourage employees to say great things about you is to be a great employer with a great service or product.
There are some companies that are horrible places to work or their products and services suck. They won’t survive social media. And that’s a good thing.
- Camera Phones Are Changing Everything
Transparency and accountability arrive in the form of a smart phone. Companies can no longer get away with bad bosses, sketchy ethical practice or mediocre working conditions. Everyone has comprehensive recording technology all the time everywhere. The new normal is “how will this look on YouTube?”
- The Future of Recruiting: The Final Chapter
This remarkably comprehensive look at the future of recruiting ought to be on your reading list. Recruiting sets the pace of HR technology and work process adoption because it is hyper competitive and market facing. From here, it looks like the future of big company recruiting, maybe. The other 80% of the workforce finds its gigs in other ways. This is a picture of one side of the future technological divide.
Take a look at this one. The idea is to park a ship 12 miles off the california coast in international waters. That way, people who want to be a part of the Silicon Valley culture but don’t have the documents can easily get in and out of the Valley without having to physically live there. It’s a not quite new concept in staffing. It has conceptual roots in the large compounds full of expatriates in the Saudi landscape.
- Understanding the LinkedIn Talent Brand Index
This is Josh Bersin’s understanding of LinkedIn’s new Brand Index. The trouble is that LinkedIn only measures activity on LinkedIn so the tool is really a measure of how well you are spending your money on LinkedIn and not a reflection of your brand at all. You have to use LinkedIn for branding purposes to even register on the scale.
- We Have The Whole History of the Web Wrong
1. The sharing you see on sites like Facebook and Twitter is the tip of the ‘social’ iceberg. We are impressed by its scale because it’s easy to measure.
2. But most sharing is done via dark social means like email and IM that are difficult to measure.
3. According to new data on many media sites, 69% of social referrals came from dark social. 20% came from Facebook.
4. Facebook and Twitter do shift the paradigm from private sharing to public publishing. They structure, archive, and monetize your publications.
- The Skills Gap: Talent Shortages and What They Mean
John Sumser takes you through the various ways people are thinking about the “quality” problem.
- 10 Ways to Effectively Market Your HR Business Using Social Media
A conversation with Sumser and Mark Willaman
- Enterprise Games – Merging of Video Games and Business Operations
Webinar from OReilly. If you are interested in Gamification this is a can’t miss webinar on November 17.
Employment branding has three distinct facets
There are three distinct facets of an employment brand. Each of them are an aspect of the employment brand and not the whole thing:
- Stories and positioning for people unfamiliar with the brand
This is what most employment branding conversations are about.Stories about company culture, the relative extent of benefits, the aspirational qualities of the company, pretty pictures, good stories and transparency are all aspects of the outreach to novel employees. Active job hunters consume much of this content as they try to figure out whether or not they should apply for a job. This is the stuff that gets the greatest attention from branding specialists and advertising agencies.
- The way that experienced people within the industry see the company as a place to work
Once you’ve worked in an industry for more than a year, you know who the players are and have a sense of what it’s like to work there. You get it at the water cooler or by talking to the gal who used to work for a competitor. Contract workers who move around an industry are great sources of intelligence about what it’s like to work ‘over there’.This view is usually at odds with the other two, even when the reputation is very positive.
- The way that people inside the company see their employer
Working for company X is the core experience companies try to convey in their branding. The internal zeitgeist is hard to articulate and varies somewhat from supervisor to supervisor (or plant to plant in the case of Apple), Nevertheless, there is a core DNA of the experience of working for a particular employer. It always includes a certain amount of groupthink. Like any perception rooted in a core audience, there are advocates, detractors and the middle.
Do you recall the story of the blind wisemen and the elephant? It’s a great explanation of how the same thing can look very different depending on your perspective. Each of the wisemen is sure that he has the explanation of the total elephant. In fact, they each understand an aspect.
That’s what debates that try to stuff complex ideas into little sound bites get you. The poem ends by noticing that the blind wisemen were arguing about an elephant that none of them had seen.
These three facets of the employment brand do not necessarily perfectly correspond with each other. Experience varies by individual. When you go ask people from each of these groups about the workplace, you get a range of answers.
It’s particularly hard to see the realities inside your own bubble. There is almost always some level of dissonance between the story put forth in the formal employment marketing materials (website, standard job ad text, brochures, recruiting talking points) and the way it seems to experienced industry people or insiders. Similarly, the insider’s view is usually different form the rest of the industry.
Sometimes the problem is that a company has a great brand but it’s not the one that they want. Many companies are ‘great places to be from’. That is, putting your time in Company X is a gateway to increased wealth and better assignments. So, you have to put your time in that company if you want to be credible in the industry.
But, no one wants to stay there longer than they have to.
So, that employment brand means one thing to newcomers, another to insiders and another to folks who have left. Tampering with any of those aspects will affect the whole.