A 2009 YouTube video made by two rogue Domino’s employees left a bad taste in the mouth of over 1 million viewers who watched it.
While Domino’s executives initially hoped the controversy would die down, the perpetual mushroom effect of Twitter tweets reminded potential customers, “When you think about Domino’s think nose snot.” The hammering of bad publicity forced the company to close the store at which the employees worked. The fired employees face federal food-tampering charges.
But what’s important here is not the amount of chatter, but the emotion, intensity and negativity associated with a brand in a crisis. Words like “disgusting,” and “snot” hounded Dominos. The word “Motrin” also found its way into the conversation, echoing the controversial Motrin Moms commercial that went negatively viral.
Can employees do this without consequences? That depends on your HR policy, its enforceability and whether the employees break other laws.
But, every employee’s rights to privacy complicate this matter, as does the fact that the National Labor Relations Act protects even non-union employees.
As recently as 2008, the National Labor Relations Board (NLRB) issued an advice memorandum upholding the social media policy of Sears Holdings that prohibited the “disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy and business prospects.”
After 2008, however, the composition of the NLRB changed dramatically, and a recent complaint issued by an NLRB regional director might portend a shift in how the agency views social media policies.
Setting Precedent
In what labor officials and lawyers view as a ground-breaking case involving workers and social media, the National Labor Relations Board on November 2010 accused a company of illegally firing an employee after she criticized her supervisor on her Facebook page. Click here for the NLRB News Release link.
The yet-to-be resolved case involves an ambulance service, American Medical Response of Connecticut, who fired an emergency medical technician, accusing her, among other things, of violating a policy that bars employees from depicting the company “in any way” on Facebook or other social media sites in which they post pictures of themselves.
The NLRB is suing the company, alleging that the company illegally terminated the employee, and that the company “maintained and enforced an overly broad blogging and Internet posting policy.”
The NLRB argues that the company's rule was overly broad and inappropriately limited an employees' right to discuss working conditions among themselves, according to The New York Times. "This is fairly straightforward case under the National Labor Relations Act -- whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that," said NLRB general counsel Lafe Solomon.
In what labor officials and lawyers view as a ground-breaking case involving workers and social media, the National Labor Relations Board on November 2010 accused a company of illegally firing an employee after she criticized her supervisor on her Facebook page. Click here for the NLRB News Release link.
The yet-to-be resolved case involves an ambulance service, American Medical Response of Connecticut, who fired an emergency medical technician, accusing her, among other things, of violating a policy that bars employees from depicting the company “in any way” on Facebook or other social media sites in which they post pictures of themselves.
The NLRB is suing the company, alleging that the company illegally terminated the employee, and that the company “maintained and enforced an overly broad blogging and Internet posting policy.”
The NLRB argues that the company's rule was overly broad and inappropriately limited an employees' right to discuss working conditions among themselves, according to The New York Times. "This is fairly straightforward case under the National Labor Relations Act -- whether it takes place on Facebook or at the water cooler, it was employees talking jointly about working conditions, in this case about their supervisor, and they have a right to do that," said NLRB general counsel Lafe Solomon.
“Such provisions constitute interference with employees in the exercise of the right to engage in protected concerted activity,” the NLRB found.
Companies have reason to enforce policies aimed at protecting their image and brand. Although Facebook is often seen as a more casual forum for personal discussions, social media may well be the new "water cooler" for employer conversation.
Companies have reason to enforce policies aimed at protecting their image and brand. Although Facebook is often seen as a more casual forum for personal discussions, social media may well be the new "water cooler" for employer conversation.
A hearing before an NLRB administrative law judge is scheduled for Jan. 25, 2011.
Sidebar:
Interestingly, the National Labor Relations Board has an very active Facebook presence. It can be found at: http://www.facebook.com/NLRBpage
Update:
NLRB Settles Complaint as "Concerted Activity"
On February 7, 2011 - the day before the scheduled NLRB hearing, the NLRB announced that it had settled the Complaint with the employer. Importantly, under the settlement, the employer agreed to revise its Internet posting policy, which the NLRB had alleged was overly broad and improperly restricted employees from discussing their wages, hours and working conditions with co-workers and others while not at work.
While this settlement was reached at the "Complaint" stage and did not established NLRB precedent, the Complaint itself is clearly an indication of how the NLRB views employees' use of social media
Related News...
Sources:
1. Steven Greenhouse, "Worker Rights Extend To Facebook, Labor Board Says," New York Times, December 20, 2010
2. Laura Strachan, "NLRB: Facebook Complaints Are Protected Speech," Findlaw.com, November 10, 2010
3. Lynne Curry, "Social Media Can Turn A Prank Into A Crisis," Anchorage Daily News, December 19,2010
4. Melissa Bell, "Facebook Job Whining Is Protected Speech, Say Labor Board," Washington Post, November 9, 2010
5. National Labor Relations Board, "Compaint alleges Connecticut company illegally fired employee over Facebook comments," November 2, 2010
6. National Labor Relations Board, "Settlement reached in case involving discharge for Facebook comments," February 8, 2010
7. Lucia Moses, "In First, NLRB Goes After Thomson Reuters Over Twitter," Adweek, April 6, 2011
Sidebar:
Interestingly, the National Labor Relations Board has an very active Facebook presence. It can be found at: http://www.facebook.com/NLRBpage
Update:
NLRB Settles Complaint as "Concerted Activity"
On February 7, 2011 - the day before the scheduled NLRB hearing, the NLRB announced that it had settled the Complaint with the employer. Importantly, under the settlement, the employer agreed to revise its Internet posting policy, which the NLRB had alleged was overly broad and improperly restricted employees from discussing their wages, hours and working conditions with co-workers and others while not at work.
While this settlement was reached at the "Complaint" stage and did not established NLRB precedent, the Complaint itself is clearly an indication of how the NLRB views employees' use of social media
Related News...
In First, NLRB Goes After Thomson Reuters Over Twitter
Labor Board plans to file complaint about employee disciplined for Tweet
- Lucia Moses , Adweek (April 6, 2011)
In an apparent first, Thomson Reuters could face federal penalties for allegedly disciplining an employee over his use of Twitter, according to the Newspaper Guild of New York.
The Guild, which represents more than 420 Thomson Reuters employees, announced Wednesday that the National Labor Relations Board planned to issue a complaint, the equivalent of formal charges, against the company. According to the Guild, the employee in question was a union activist who was responding to a management solicitation for opinions about the company. The employee tweeted that the company should “deal honestly with Guild members.” Thomson Reuters hasn’t replied to a request for comment.
The Guild said the NLRB would also charge Thomson Reuters with illegally cutting employee pay in the amount of $2.4 million a year; and with imposing rules that illegally bar the union from bargaining over wages.
The NLRB complaint would lead to a trial before an administrative law judge unless both parties settle, according to the Guild.
Sources:
1. Steven Greenhouse, "Worker Rights Extend To Facebook, Labor Board Says," New York Times, December 20, 2010
2. Laura Strachan, "NLRB: Facebook Complaints Are Protected Speech," Findlaw.com, November 10, 2010
3. Lynne Curry, "Social Media Can Turn A Prank Into A Crisis," Anchorage Daily News, December 19,2010
4. Melissa Bell, "Facebook Job Whining Is Protected Speech, Say Labor Board," Washington Post, November 9, 2010
5. National Labor Relations Board, "Compaint alleges Connecticut company illegally fired employee over Facebook comments," November 2, 2010
6. National Labor Relations Board, "Settlement reached in case involving discharge for Facebook comments," February 8, 2010
7. Lucia Moses, "In First, NLRB Goes After Thomson Reuters Over Twitter," Adweek, April 6, 2011
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