(By Julie Mann and David J. Houston. From SBAM’s member-only Focus on Small Business magazine.
Historically, we have seen that “law” lags “life.” What this means is that cases do not make it to and through the court system at the same pace that things are evolving in the game of life! In business, as it relates to our employees, we are seeing that exact analogy play out as it relates to social media. Since both the law and social media communications continue to develop, the safe employer will “proceed with caution,” but in doing so, they will stay ahead of the curve by maintaining up-to-date written employment policies.
As we look at the drivers of the social media trend, depending on the statistical base from which you are reading, we learn that there are approximately 1.43 billion social network users in 2012, which represents a 19.2 percent increase over 2011 figures. It seems logical to think that at we will eventually reach a social media saturation point, however the trend line surely doesn’t suggest that the saturation point will arrive any time soon.
So what is important for a business to generally understand about social media? The NLRB’s (National Labor Relations Board) stance in applying the NLRA (National Labor Relations Act) to social media policies is rapidly evolving. The headline for businesses to know is that, especially at this juncture with ‘law lagging life,’ employers should exercise caution in implementing social media policies and should also exercise caution prior to imposing social media related disciplinary action.
Furthermore, all indicators suggest that the NLRB will continue to be actively involved in social media-related employment issues. If anything, the NLRB’s presence may increase as a result of a new rule that that is currently pending which would require employers to post a notice informing employees of their rights under the NLRA. (Another “TAKE NOTE” topic to our small businesses!)
Also important to note, according to the NLRB: not all social media use is protected and overly broad social media policies are considered unlawful which is again why “proceed with caution” is advised. (See next issue, Part 2, which will further discuss this dichotomy.) So, if you find yourself scratching your head many small business owners are doing the same thing and it’s OK!
The Premise behind the Social Media Mystery
It’s important for employers to know that the premise behind the social media mystery lies within Section 7 of the National Labor Relations Act (NLRA) which permits employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” What this means is that regardless of whether the employer is unionized or not unionized (VERY important to note), employees must be free to discuss the terms and conditions of employment without fear of reprisal. The reason this is important to note is that there have been times when non-union shop clients receive a ULP (Unfair Labor Practice) notification and call to say, “There’s no way this applies to me, I’m a non-union shop so I don’t have to interact with the NLRB.” Sorry but…wrong! Union and Non-Union work settings CAN get ULP’s, which is why all employers need to assure that their HR practices are buckled down and they are paying attention to this issue of social media. Settling (or litigating) one ULP is a major business expense when compared to the cost of proactively assuring that your HR policies and practices are compliant.
Julie Mann is the CEO & President of JMann Consulting Group, The Rock Star Factory, RockStar Verified and the newly launched non-profit, Rock Star Warriors. JMann Consulting Group provides on-call HR Manager Services The Rock Star Factory is a professional placement firm, Rock Star Warriors educates business and veterans on employing veterans can be contacted at 517.507.7568 or via email at julie@jmannconsultinggroup.com.
David J. Houston is a member of Dickinson Wright PLLC, and its Labor and Employment, Health Care, Insurance and Commercial Law practice groups. David is a cum laude graduate of the University of Michigan and received his law degree from the University of Wisconsin. Mr. Houston is recognized in both “Best Lawyers©” and “Super Lawyers.” Mr. Houston may be contacted at: dhouston@dickinsonwright.com or 517.487.4777.