The two Jackson-Lewis attorneys (Richter from the Omaha office and Sandoval from the Newport Beach, California office) offered their tips at the SHRM Annual Conference and Exhibition held recently in Las Vegas.

If there's any question about whether you need to deal with social media, just check these Facebook.com figures and facts, says Richter:

• Facebook has over 600 million active users
• 50% of Facebook users log on every day
• Average user spends from 15 hours and 33 minutes on Facebook per month
• Average user visits the site 40 times per month
• Average user spends 23 minutes (23:20 to be precise) on a visit
• Many users admit to logging in while at work

How many hours is your organization losing to social networking?

And here's a demonstration of social media problems from the usually untalkative U.S. Secret Service. Their Official US Secret Service Tweet on May 9, 2011:
"Had to monitor Fox for a story. Can't. Deal. With. The. Blathering."

The normally publicity-shy agency had to issue an official statement of apology:
"An employee with access to the Secret Service's Twitter account, who mistakenly believed they were on their personal account, posted an unapproved and inappropriate tweet...We apologize for this mistake, and the user no longer has access to our official account. Policies and practices which would have prevented this were not followed and will be reinforced for all account users."

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The Blogging Paramedic—Can You Discipline?

Richter offered a typical social media scenario that might involve NLRA issues:

Susan regularly blogs on her own Internet site. She blogs on her own time at home, and not at her job, where she works as a paramedic.

Lately, Susan has begun expressing frustration with her supervisors and others at work on her blog. HR finds out that Susan wrote the following blog entry:

"This company is completely screwed up. Tom and I were on the same crew last night and were treating a little boy who was in a car accident and began having seizures. Tom misdiagnosed the boy's condition and gave the boy the wrong medication. I'm thinking about reporting him."

Can Susan's employer discipline her? Is there an NLRA issue?  To find the answer for such a situation in your company, Richter and Sandoval recommend answering the following five questions before disciplining employees for blogging against the company:

Questions to Ask When Disciplining an Employee

• Was the employee engaging in protected "concerted activity under the NLRA?
• Is the employee protected under a "whistleblower" statute?
• Was the communication related to political activities or affiliations?
• Was the employee engaging in "legal off-duty activity" protected by state law or illegal activity?
• Does the employee have a potential discrimination claim?

The attorneys explored the NLRA question in more detail.

First of all, they said, their firm has about 24 pending lawsuits involving social media firings, and most involve the NLRB.

What Does the NLRA Say?

The National Labor Relations Act says:

"Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection..."

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NLRB's Aggressive Approach

The NLRB is taking an aggressive approach to the issue of social media communication as a concerted activity. As examples, the attorneys cite the following cases:

• American Medical Response of Connecticut Inc. — February 2011.  This case ended with a settlement where the employer had to revise policies regarding online communications after firing of employee for a Facebook comment.
• Build.com — April 2011. This was another settlement in which a similarly terminated employee was reimbursed for lost earnings and the employer was required to post signage in the workplace saying the company cannot terminate anyone over what they post online.
• Thomson Reuters News — April 2011. NLRB threatened to file a complaint for employer's reprimanding of a reporter over a message she sent about the workplace.
• Hispanics United of Buffalo — June 2011. A trial has been set over a charitable nonprofit's decision to lay off five employees who allegedly criticized workload and staffing conditions on Facebook.
• Karl Knauz BMW — July 2011. A trial has been set over a Chicago luxury car dealership's firing of a salesman for a purported Facebook comment with photo critiquing a company event.

NLRB's acting counsel Lafe Solomon has said using Facebook is the same as employees talking around the water cooler.

It's not unusual for the NLRB to ask for your policies, Richter said. They want to make sure that policies don't discourage discussion, that they don't have a 'chilling effect' on protected activity.

Bottom line, employers must tread lightly if considering terminating an employee based on internet postings! Richter says.

In tomorrow's Advisor, whether you can refuse to hire based on social media information, and some good news—your job descriptions are updated and ready to go.

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