Concerted Activity and Social Networking - Research Paper Example

?Running Head: CONCERTED ACTIVITY AND SOCIAL NETWORKING Topic: Concerted Activity and Social Networking Back in 2002, long before social networking sites like Facebook, twitter, MySpace and all other social networking sites hit the scene, the Ninth Circuit in its ruling held that the suspension of an employee following his posting of disparaging comments on his company in his personal website was in their opinion “retaliatory in nature.” The focus then was that “retaliatory actions” against staff making disparaging remarks on the internet concerning their employers might occasion liability on the side of the employer. A number of cases attest to this development. First, there was the Burlington Northern & Santa Fe Railway v. White case of 2006. In this case, the court held that any adverse action instituted against an employee might constitute a “retaliation action’ if such an action has the capacity of deterring a rational employee from raising a complaint against his/her employer (DelPo, & Guerin, 2011). The same rationale was applied in the case of Crawford v. Metropolitan Government of Nashville and Davidson County of 2009. In this particular case the court held that an employee might not be retaliated against for taking part in an organization’s investigation of a colleague’s complaint (Hogan, 2011). The courts even went on to award a $1.5 million to the staff member who had filed the lawsuit. Even the judge in the Thompson v. North American Stainless case appeared to concur with both judgments when he allowed for a man to sue for retaliatory for being fired just shortly after her spouse filed a sex discrimination charge against her employer who was also his spouse’s employer (Sprague, 2012). It was this kind of reasoning that informed the enactment of the National Labor Relation Act (NLRA) or the law governing the relationship between unions and organization’s management. This is because firing an employee for issuing an angry Facebook, or any other social networking site, rant amounts to retaliation on the part of the employer and therefore illegal if the reasoning behind the above cases is anything to go by. With the coming of social networking sites the discussion on the treatment of seemingly disparaging posts on the employers on the same went a notch higher. Still the same line of reasoning held sway if a number of rulings that have been made in connection to disparaging remarks made in social media site on employers is anything to go by. The explosion of these social networking has brought about new employment-related issues to the organizations that companies should worry about very much. This explain why new issues like; online harassment and particularly in any of the social sites, theft of company’s secrets by bloggers and ranting from some quarters about YouTube, MySpace, twitter and any other social networking sites; have become common theme is employments seminars. Just as employers are trying to come up with ways and means of dealing with these challenges, a new debate has been kicked-off interrogating the question of whether internet postings constitutes Concerted Activity under the definition of National Labor Relation Act (NLRA).In this regard, NLRA is a law that was enacted in 1935 in order to protect the employees’ rights in concerted activity (Smith, 2011). Although the law does not explicitly define what a concerted activity is, case laws have offered what can be looked on as the range of activities that make up concerted activities. These activities include; hour, wages, safety, working condition and also benefits. According to NLRA, these are the activities that should not be prohibited by any policy that a company might decide to implement. As a law, NLRA is the reference point of HR professionals and organizations when it comes to dealing with employees’ social media activities, and particularly Section 7 which provides that “employees have a right to self-organization, to form, join, or even help labor organizations, in collective bargaining through representative that they have chosen freely, and also to engage in any other concerted activities for purposes of collective bargaining any other mutual help or protection (O’Brien, 2009).” What this basically means is that employers ought not chill, or even appear to be penalizing communication between employees on issues to do with working condition, and employment’s term and condition and particularly those touching on salaries and benefits. This statutory protection emanating from the fact that it falls within the domain of “concerted activity,” that has been added by the social media further extends to comments that a co-worker might add to an employee online complain concerning work (Kierkegaard, 2008). Even comments that appear on the face of it to be out of the scope and meaning of protected activity are off limit for permitting an employee. For instance, NLRB has held that employees should not be fired for any of these contents on the social media sites; First, an employee(s) who complain on the social network site for cheap foods that have been served to the company’s clientele has was the case with the car dealership employee who was fired for doing exactly that before being subsequently reinstated. In this case an employee with BMW was fired for publishing posts on Facebook that appeared to ridicule BMW dealership for ostensibly serving its guest less upscale hot dogs during a sales event instead of more upscale dishes (Tanick, 2012). This employee was also accused of sharing several negative postings concerning an incident touching on Land Rover which was also owned by BMW. In judgment, NLRB pointed out that the post concerning hot dogs constituted concerted activity as they emanated from a discussion among employees and protected as such because they had the ability to ‘turn-off” customer thereby impacting on the employees’ commission. However, NLRB concurred that the Land Rover posts could not be protected as they neither emanated from a concerted activity nor had any connection whatsoever with the terms and conditions of the employees’ employment (Shepherd, 2011). This is one of the first complaints that provoked NLRB to focus its attention in investigating policies that companies adopt in their attempt to address various workplace-related issues that are inherent in social media and networking sites. This case might have been the very first that involves firing of employees for work related social media activity. However, it certainly is not the first case that NLRB has communicated its stand on the limits for social-media policy. For instance, on 18th August 2011, its Acting General Counsel issued a report on the fourteen cases that they had been investigating involving employees’ use of social networking sites and employers’ policies on the same. In four out of the fourteen cases, the Acting General Counselor observed that the staffs were engaged in the so-called “protected concerted activity” due to the fact that their social media activity were basically an online discussion with their fellow staffs touching on their employment’s terms and conditions (Sherman, 2011). This report further pointed-out that employers had more issues with overboard policies. This was also reinforced by a 5th August 2011 reports by the US Chamber of Commerce which reported that from the over 129 cases that were reviewed by NLRB concerning social media, one common thing that stood out was the employers’ overboard policies that appeared to restrict employees’ use of social media sites. Second, a employee who post comments in social media site as an angry response to a colleague criticism of his/her performance as was the case with five employee in the Hispanic United Buffalo; Inc. In this case, five employees were fired by Hispanic United of Buffalo; Inc for posting comment on Facebook that appeared to be an angry response to a criticism of their work performance by a colleague at Hispanic United of Buffalo, Inc (HUB) (Tanick, 2012). However, the Administrative law judge differed with HUB stating that their posts despite appearing like an angry response to a colleague criticism were within the meaning of concerted activity as stipulated by Section 7 of the National Labor Relations Act (NLRA), thereby rendering the termination of their employment a contravention of Section 8(a)(1) of the same act. In light of that, the administrative law judge proceeded to order their immediate reinstatement together with full back pay (Kierkegaard, 2008). NRLB argued that the employees’ post were linked to their employment’s terms and conditions due to their involvement of their performance and therefore concerted because they amounted to “an initial step toward a full-brown group action.” This is because an individual action is concerted if it is informed by the need to initiate or even induce group action. Thirdly, a unionized employee who posts negative comments about his/her senior has was the case with an employer in American Medical Response Inc (AMR) who posted negative comments concerning his supervisor. In this particular case a union-represented employee of AMR was fired for posting negative comments on her Facebook page touching on her supervisor. These negative comments are said to have drew an avalanche of supportive responses from his colleagues in the entire American Medical Response Inc (AMR) staff thereby perpetuating a trail of negative remarks on their supervisor. Realizing the damage that might have been occasioned by this action the employer terminated the employment of this employer at which point the employee invited NLRB for intervention on the matter. According to NLRB, the employee’s Facebook posts constituted a concerted activity and therefore legally permissible. They further rubbished the company’s Blogging and Internet Posting Policy for carrying unlawful provisions that included one that appeared to prohibit employees from making disparaging remarks in reference to the company or any of its senior staff and the second one that prohibited the employees from depicting AMR in any light over the internet without its approval. According to NLRB, any of these two “amounted to interference with staff’s right to engage in protected-concerted-activity (Elkin, 2012).” NLRB further pointed out that the termination of the staff employment was in contravention of her right as enshrined in Section 7 of the National Labor Relations Act that protects an employee’s right to protest his or her working condition. NLRB also accused the company because of its Blogging and Internet Posting Policy that inappropriately restricted staffs from communicating complaints concerning their work environment. In another case, an employee who post comments on a social networking site castigating his/her senior or even calling them name has was the case with a paramedic whose services were terminated for castigating and insulting his supervisor. In this case a paramedic who went out of his way to post comments on Facebook that appeared to castigate her supervisor while still calling her names was fired. However, according to the Office of general Counsel, the posts on Facebook that this paramedic had posted were protected under the concerted activity and therefore inappropriate to terminate his services to the company (Tanick, 2012). Lastly, firing an employee for responding negatively to his manager’s request to respond to a client’s complaint just as was the case with an ambulance service company employee who was fired for posting comments in his Facebook page concerning her manager in response to the manager’s request to have the employee respond to a client’s complaint which she was not very comfortable with. It is believed that this comment attracted an avalanche of negative comments from his colleagues some of which bordered on personal attack on the manager, all of which appeared to be in solidarity with the employee’s initial allegations (Sherman, 2011). According to the company management, this initial comment was against the company’s policy that prohibits any “disparaging, defamatory, and discriminatory” comments concerning its staff, management, or competitors and therefore had to be disciplined which explain it decision to fire the offending employee behind the initiate comments (Hudson, 2011). This is basically what triggered the suit that the NLRB ultimately filed against the ambulance service company for what it termed as an unjust labor practice that infringed on the company’s employees right to engage in a concerted activity (Hudson, 2011). Under National Labor Relation Act (NLRA), employees have a legal right to “involve themselves in concerted activity for purposes of collective bargaining or other mutual assistance and safeguard (Moser, 2012).” The law goes on to state that “for an activity to be protected, it must be performed by two or more employees, or even one employees provided he/she has the authority of the rest of the employees. It must also be within the terms and conditions of employees if it is to fall under the definition of “Concerted Activity”. Lastly, an activity that is protected by National Labor Relation Acts as “Concerted Activity” might forfeit it protection if it turns out to be unruly and opprobrious. The law does not also cushion a person from liability if his or her postings on an electronic media are malicious, personal, reckless, disloyal, or amount to an outright breach of confidentiality (Hudson, 2011). Still, posts that appear to disparage a bank or even its services are exempted from the immunity that this law offers to electronic posts. Surprisingly, a post like “my manager is really terrible because of the way he makes us work like donkeys even on Saturdays” is likely to be protected as a concerted activity and particularly if other employees continue the thread with comments that are clearly related to working condition, benefits, pay or any other “concerted activity”. A careful analysis of these cases reveals that none of them lost its protection for being too opprobrious. For instance, in the case of BMW, NLRB concluded that the sarcastic nature of comments against serving hot dogs to guests was within “permissible bounds”. Just as was the case with the social services case, the NLRA concluded that the posts did not amount to harassment according to the company policy (Tanick, 2012). In the case of the paramedic, the Office of the general Counsel observed that the fact that they occurred after hours later cured any idea of being disruptive, while mere name-calling could not have made an activity lose it protection under NLRB. Many more decisions have been issued rejecting employees’ arguments that their comments on social sites like Facebook are protected under NLRA. However, these cases still raises questions on employers on a number of issues. For instance, questions have been raised on what would be the employer recourse on a clearly protected post under NLRA but containing sexual references (Hoffman et al, 2012). This is because by enforcing the company’s harassment policy on the offending employee, the employer risks an NLRA charge. Still, if it decides to do nothing, it still risks being accused of failing to take firm actions to deal with a sexually hostile environment. From these examples there is no doubt that employers need to be cautious before taking any adverse action against any comment on the internet that an employee might have taken or posted in the social media. There are those who might argue that due to the reduced number of employee joining unions, the National Labor Relation Acts has been rendered unimportant. However, this cannot be the case primarily because judges, lawyers and social networking experts have stretched the application of this law to cover even non-unionized employees (Flynn, 2012). Their argument is premised on what they believe are rights that covers all employees irrespective of whether they are under a contract agreement or not. The law’s relevance in our daily life has also been elevated by the fact that it has taken over the management of the bounds that employees and employers ought to interact online. Therefore with the increased use of social networking site and the huge content on these sites, one can see the importance of this law. In the right of these issues surrounding social networking in the context of labor law, the corporate world has embarked in a process that seeks to address these issues. For instance, the labor laws and social networking experts have recommended for the setting up of policies governing the use of such site with clear guideline on what constitute acceptable or unacceptable use of social media sites so that employees are put on notice on what is expected of them when it comes using social sites (Hoffman et al, 2012). However, there is need to dispel the fear that might emanate from the perception that such an action is more favorable to the employee thereby discouraging employers with non-unionized employees from taking action against their employees who makes disparaging remarks concerning them on Facebook, Twitter, MySpace or any other social networking site. It therefore remains the best recommendation that the creation of reasonable policies with respect to social networking sites is still the most prudent approach. However, employers should exercise caution before taking any actions against members of staff who makes disparaging remarks on Facebook, MySpace, Twitter, or any other social media site about them. Reference: DelPo, A., & Guerin, (2011). Dealing with Problem Employees: a legal Guide. Rome: Nolo Elkin, (2012). Is Social Networking Protected Concerted Activity? Elkins; Employment Law, Counseling, Training, & Litigation for Employers. Woodland Hills: Elkins. Flynn, N, (2012). The Social Media Handbook, New York: John Wiley & Sons Hoffman, L., Glynn, C., & Huge, M. (2012), News feed: A Profile of New Use on Social Networking Sites, Annual Meeting Paper Hogan, C., (2011). Concerted Activity and Social Media: Failing To Hang Together May No Longer Mean Hanging Separately. Columbus Bar Lawyers Quarterly, spring 2011 Hudson, S., J. (2011). Social media: Are Employees’ Negative Comments about Management Protected Expression. Florida Banking Magazine. Retrieved on 24th April 2012 from http://www.sctlaw.com/index.php?option=com_content&view=article&id=99:soc ial-media-are-employees-negative-comments-about-management-protected- expression&catid=2:sct-news&Itemid=4 Kierkegaard, S. (2008). Cybering, Online Grooming and Ageplay. Computer Law & Security Report, Vol. 24, No. 2, pp. 93-186 Moser, W., (2012). Facebook, Law, and Employment: Before Dissing Your Boss, Think like a Lawyer. Chicago Magazine. Retrieved on 24th April 2012 from http://www.chicagomag.com/Chicago-Magazine/The-312/March-2012/Facebook- Law-and-Employment-Before-Dissing-Your-Boss-Think-Like-a-Lawyer/ O’Brien, N., C. (2009). Employees on Guard: Employer Policies Restrict NLRA- Protected Concerted Activities on E-Mail, Oregon Law Review. Vol. 88, No. 1, pp. 195-253 O’Brien, N., C. (2009). The NLRB Waffling on Weingarten Rights. Loyola University of Chicago Law Journal, Vol. 37, No. 1, pp. 11-146 Shepherd, J. (2011). Firing at Will: A Manager’s Guide. New York: Apress Sherman, (2011). Your Social Media Policy may Need Revamping. Retrieved on 24th April 2012 from http://www.natlawreview.com/article/your-social-media-policy- may-need-revamping Smith, A, (2011). When Are Social Media Posting Concerted Activity? HR Magazine, Retrieved on 24th April 2012 from http://findarticles.com/p/articles/mi_m3495/is_7_56/ai_n57927089/pg_2/?tag=c ontent;col1 Sprague, R., (2012). Facebook meets the NLRB: Employee Online Communications and Unfair Labor Practices. University of Pennsylvania Journal of Business Law, Vol. 14 Tanick, (2012). Labor: Social Media Posts as protected Concerted Activity under the NLRA. Retrieved on 24 April 2012 from http://www.insidecounsel.com/2012/01/02/labor-social-media-posts-as-protected- concerted-ac?page=2 Read More