Sounding Board: The dark side of social networking

The next round of labor negotiations may involve stipulations surrounding social media use. The next time union contracts come up for renewal retailers may find themselves negotiating on three levels—wages, benefits and social networking. It is not as improbable as you might think, given the escalating use of social media outlets by employers and employees. Of course, the upside to social media is its value is as a vehicle for instant communication and marketing. But the downside and dark side is its ability to blur the lines between work and personal lives. Consider the following: Can an employee be terminated for malicious misconduct if he complains online that the food at a company event was lousy, which hurt customer sales? If a relationship between two co-workers ends and one of them posts disparaging comments about the other, is that person—or the company—libel under sexual harassment laws? Is it an unfair labor practice for an employer to use social media sites to monitor activities of current or prospective employees such as their religious or political affiliations, drinking habits or drug usage? Is it coercive conduct when a union interviews and videotapes employees at a non-union jobsite about their immigration status and posts it on YouTube or  Facebook? The names have been left out, but these are real cases. As if labor relations were not already a regulatory snake pit, these and other issues are leading to what has been called “Facebook firings” and raising social media’s profile at the National Labor Relations Board (NLRB). In fact, the NLRB has more than 100 social media cases pending and a dozen are under active investigation. While this may not seem like a big deal, the outcome could significantly impact labor law and the relationship between employers and employees. On another level, this could become a First Amendment issue. But freedom to post or pry into someone else’s business does not mean you are free from consequences. An employer cannot just fire someone because they didn’t like their comments. But not every comment on Facebook or Twitter is protected by law. Meanwhile, a new survey sponsored by the Health Care Compliance Association (HCCA) and the Society of Corporate Compliance and Ethics (SCCE) found that 42% of companies discipline employees for misusing social media and 31% had specific policies for social media use by employees outside the workplace. Additionally, a study by Harris Interactive for Careerbuilder.com in 2009, found that 45% of employers used social networks to screen job candidates. Interestingly, 35% of employers decided not to offer a job to a candidate based on content found on these sites. More than half of those surveyed said that provocative pictures were the biggest factor in deciding not to hire someone, while 44% mentioned drinking and drug use and others used bad mouthing previous employers and poor online communication skills as warning flags. For everyone’s protection, experts agree that it’s best to establish a social media policy that sets real parameters such as when sites can or can’t be accessed, what constitutes inappropriate behavior and how far a business can go to protect itself. In fact, collective bargaining agreements and private employment contracts can be used to spell out the types of off-duty conduct that can result in disciplinary action, according to an extensive paper on employment issues related to social media by Leslie Bottomly, a partner in the law firm of Ater Wynne, based in Portland, Ore. She also mentioned that employers using social networking as a screening tool should develop a policy on this practice in order to ensure consistent treatment and insure they will be able to respond to discrimination claims. But before taking any adverse action against an employee for posts, she urged companies to make sure the posts are not protected by the National Labor Relations Act. This includes comments on wages, salaries or hours; working conditions, dress codes, work assignments employment policies or union advocacy. There are far too many details in this paper to list here but it is well worth reading for everyone who becomes embroiled in issues surrounding the “digital water cooler.” However, a simple solution to all these issues was offered by someone who said: “Never put anything on the Internet that you would not want on a big sign in your front yard.” Unfortunately, nothing is ever that simple. Len Lewis, a regular Grocery Headquarters columnist, is a veteran industry journalist, commentator and editorial director of Lewis Communications, Inc. He is the author of The Trader Joe’s Ad­venture—Turning a Unique Approach to Business into a Retail and Cultural Phenomenon. He can be reached at [email protected] or at www.lenlewiscommunications.com.