If you have been paying attention, to either my blog posts or others or the HR literature, you know the National Labor Relations Board has been enforcing protection of workers’ rights in their use of social media. But not everyone is protected. Turnabout is not fair play.
A refresher on Section 7
The NLRB decisions on social media protections have been based on Section 7 of the National Labor Relations Act which specifically provide covered employees with the right to engage in “protected concerted activity” when discussing wages, hours and working conditions. Thus the stories of employees griping about fellow employees or supervisors (working conditions) who are let go by their companies yet are reinstated by the NLRB. The reasoning is that they are protected in the right to have that gripe if other employees agree or even just “Like” on Facebook posts. This is the “concerted activity” aspect of the law. From these stories everyone thinks they are protected in their Facebook activity. Is this correct?
If you read the paragraph above carefully you will have noticed that I said Section 7 provides protection to COVERED EMPLOYEES. Supervisors and managers (and HR) are not covered employees. They are not provided protection under the NLRA and do not have the right to organize (aka concerted activity). Here is a story that demonstrates.
Supervisor gets fired
According to attorney Tim Carney of GableGotwals, a manager of a Sam’s Club used Facebook in a manner the company thought inappropriate. She was already in some hot water due to performance issues and was in a performance improvement plan (PIP). She happened to be connected to some of her subordinates on Facebook (probably not a good idea) and saw pictures from a Fourth of July party. Some of the attendees at the party had called out sick for that day of work. She was unhappy with that and she responded to the post and publicly criticized them for lying to her. One of the employees complained to HR (which took guts given what they had done.) HR counseled her that she had been unprofessional, insulting and embarrassing and told her she should have waited until they had returned to work to talk to them about attendance.
Shown the door
Because she was on a PIP her violation of the social media policy led to her being terminated. Naturally she was unhappy and filed a discrimination charge, which was not upheld. She then sued (she had the right-to-sue letter in hand) but the judge concluded that the termination was justified because of her violation of the social media policy. She had no recourse to the NLRB because she was not a covered employee. As Carney concludes “This case illustrates that while employees may be protected when they complain about their employer or supervisor using social media, the same privilege may not be given to a supervisory employee who complains about subordinates. Also, it illustrates that from the employer’s standpoint, disciplinary, counseling and other employment-related matters are better left to private communications in the workplace.”
There are several lessons from this particular case. These include:
- Managers should be encouraged NOT to befriend their subordinates on Facebook or any other social media
- Managers and supervisors should be trained on Section 7 of the NLRA and how to react to employee usage that is brought to their attention
- Managers and supervisors should be schooled in the lesson that rules that apply to employees don’t necessarily apply to them and they will be held to a higher standard
- And lastly, managers and supervisors should be trained that discipline of employees should never be held in a public forum.