When it comes to legal situations around social media and the workplace, the best defense is a good offense. You may not be asking these exact questions today, but someday you might. Keep reading to learn how to avoid legal traps as an employer, and how to formulate a stronger social media policy as an HR professional.
Q: “My employee is making comments about me on his/her personal Facebook account. What can I do?”
A: Perhaps nothing has emboldened people more than the rise of social media. Comments one wouldn’t dare make in person can now be expressed quickly and frequently behind the perceived safety of the internet.
But as inappropriate or insulting as a post may be, employers do not always have the right to take action against an employee for social media behavior. The National Labor Relations Act enforces the right of employees to engage in “protected concerted activity.” This law allows employees, with or without a union, to act together to improve their pay and working conditions.
Q: “What exactly qualifies as protected concerted activity?”
A: According to the National Labor Relations Board, an employee simply griping about their job is not concerted activity. Whatever an employee says or posts on social media must have “some relation to group action, or seek to initiate, induce or prepare for group action or bring a group complaint to the attention of management.”
However, the NLRB decides what actions deserve protection, and because every situation is different, the law is intentionally vague. Sometimes comments made on social media are interpreted as protected concerted activity because they are supported by other coworkers or simply directed at management.
In one case, an employee of a New York catering company was fired for profane Facebook comments directed at his boss and his boss’s family. Still, the NLRB found this employee protected, since the comments were made during a work break, expressed the employee’s concern about management and ended with an all caps call to join the union. The NLRB ordered reinstatement and back pay for the employee.
Less extreme examples of concerted activity include talking with coworkers about wages and benefits, circulating a petition for better hours, participating in refusal to work in unsafe conditions or joining with coworkers to address issues directly with an employer, government agency or media outlet.
The law does not protect spreading maliciously false information, or bashing an employer’s products or services without linking back to a labor controversy. However, the still-vague terms have caught many employers in legal traps.
Q: “So employers can never terminate employees for online behavior?”
A: Not exactly. Off duty conduct laws vary state to state, but employers do have the right to regulate online activity. For example, an employer can discipline employees for online behavior during work hours. However, they must be consistent in enforcing this policy. Discipline must be enforced for all online activity during work hours, not just when negative comments about the company are made.
Employers should intervene when an employee acts disloyally online as well. Complaining about a manager or pay rate on Twitter isn’t considered disloyal, but if an employee claims online that the hospital where they work is unsafe, this is considered disloyal. However, if employees address legitimate safety concerns with an employer or government agency, this activity is protected.
Q: “What other ways can I prevent legal situations around social media in the workplace?”
A: Employers must welcome feedback. Many attacks on social media happen out of pent up frustration. If frustration can be expressed early on when everyone is still rational, the extreme cases can be avoided.
Consistent communication about social media policy is also essential. Along with routine education and training, it is important for company handbooks to have compliant social media policy in order for interceding action to take place fairly and consistently. Any employer action in response to employee behavior on social media must be in line with previous action and easily traceable to a clear handbook policy.
Few things are more contagious than recognition, encouragement and gratitude. Creating an office culture of thankfulness is not seasonal work, but a year-round initiative sparked most often by leaders. The humility demonstrated by employers, managers and HR professionals in acknowledging and appreciating others can spread quickly through an organization. Simple “thank-yous” have the power to transform a workplace.
As we approach thanksgiving, we thought we would practice this gratitude with you, as well as share a few Servant HR updates! We have so much to be thankful for this year.
1. Our people
In the midst of our office remodel this week, our team still gathered together for our Monday prayer meeting. We shared personal and work-related prayer requests in a circle on the floor of our empty new conference room. We are grateful for our dedicated team members and their flexibility in transition. Each person brings a variety of skills and personality traits and we appreciate their hard work.
Our temporary team meeting spot, since no shortage of furniture can keep our team from Monday mornings together.
Our small but mighty team manages payroll, benefits administration and all things HR for clients across the Midwest.
2. Our clients
Lately we have been given opportunities to see our clients in action and we are so thankful for the organizations we serve. Edge Mentoring’s EDGE|X conference reinforced our values about servant leadership and provided us with unique networking opportunities. Hosting a booth at Truth at Work’s Transformation conference also introduced us to new people and ideas on leadership and humility. We are proud of the work our clients do and feel blessed to partner with so many different missions and organizations.
Our Truth at Work conference booth featured details about Servant HR, information about our upcoming network series and a drawing to win a free drone.
3. Our space
For our friends and clients a few states away, you may wonder where we actually work! While we serve clients in over twenty-five states, our team of eleven works out of an office complex in Fishers, Indiana. Now, after several months of prayer and planning (and a few demo days!) we are operating out of a new office that better fits our growing team
Demolition of our old space continues as our team works on the other side of the wall.
The new expansion provides more office space, several conference rooms, a break room and a waiting lounge.
The new space is an expansion of our old one into a vacant neighboring office and God has been so faithful to provide this smooth transition. We are especially thankful for Avera Commercial LLC and their quick, diligent work through the construction process. Adrian Sodrel and his team have been a huge blessing, working many late nights and early mornings to keep our workplace clean and functional.
Adrian and his team hard at work in one our new office spaces.
Avera Commercial workers rip up old carpet with cheerful smiles.
We have been richly blessed and still have much to be thankful for. So, are you infected yet? We hope our gratitude is contagious and inspires you to spend time intentionally thanking your family, your boss, your friends, your managers and coworkers this season.
Wishing you a Happy Thanksgiving from all of us at Servant HR!
U.S. companies are fighting hard in the war for loyal talent. Their strategy?
Being really, really nice.
Salary makes up a smaller part of compensation than it used to, and lifestyle benefits are filling in the gap. According to a Bank of America report, asurvey of 2,000 employees found that 88% would consider lower-paying jobs to get better perks. Paid time off, onsite fitness centers, casual dress, catered meals and a constant flow of free coffee are all approaching standard as companies work to attract and retain their people.
But amid the deluxe whirlwind of benefits, the saying holds true—no good deed goes unpunished.
In 2003, New York-based Estee Lauder, one of the world’s leading manufacturers of skin care, makeup, fragrance and hair products, implemented an exceptionally generousparental leave policy. In addition to the 12 weeks of unpaid leave required by law, “primary caregivers” were offered 6 weeks of paid leave specifically for “child bonding,” along with flexible return-to-work benefits. “Secondary caregivers” were offered two weeks of paid leave.
The policy is certainly warmhearted on paper. However, in 2017, amale stock worker at a Maryland store, requested six weeks of child bonding leave as the primary caregiver and was denied. He was granted two weeks, as the cosmetic company claimed the “primary caregiver” designation was intended only for mothers and those in “surrogacy situations.”
On August 30, 2017, the Equal Employment Opportunity Commission filed alawsuit against Estee Lauder, stating the additional parental leave policy discriminated against male employees. TheEEOC claimed the practice of allowing women six weeks and men only two weeks, violated theCivil Rights Act of 1964, outlawing discrimination based on race, color, religion, sex and national origin. The policy also was found in conflict with theEqual Pay Act of 1963—outlawing wage disparity based on sex.
Estee Lauder paid a$1.1 million settlement to the class of 210 male employees who received two weeks of paid leave, as compared to the six weeks offered to new mothers. Sex-neutral criteria was used to revise return-to-work policy, ensuring equal benefits for both mothers and fathers. Benefits were applied retroactively to all employees who experienced birth, adoption or foster placement since the beginning of 2018, and training on sex discrimination was mandated by court decree and monitored by the EEOC.
A weighty consequence for such a well-meaning idea. Fortunately for us, we can learn a few things from a distance.
“Parental leave policies should not reflect presumptions or stereotypes about gender roles,” Philadelphia District Office AttorneyThomas Rethage said. “Mothers and fathers should be treated equally.”
This equal treatment applies not only to parental leave, but to all benefits offered beyond what is required by law.
With the rising corporate trend of providing extended parental leave and other lifestyle benefits, companies must ensure treatment consistent with the prohibition of discrimination based on sex. Sincere, routine attention to policy and practices is necessary in catching unwritten stereotypes and protecting against disparate treatment.
Kindness can quickly turn unkind if not shown equally. Fair company values must match the way a company actually operates; otherwise, generous perks are an expensive and empty investment.
Since 2006, the #MeToo sexual harassment movement has been asking American workplaces some tough questions.
Increased exposure and media coverage have prompted all the right things—98% of organizations have sexual harassment policies in place, and according to the Los Angeles Times, requests for harassment training offered by corporate HR resources have multiplied 8 times since January 2017.
So, update policy and increase training. Easy enough.
However, ongoing headlines regarding sexual harassment at corporations such as Fox News and Uber, prove the still broad gap between good-intentioned rules and workplace reality.
Cultures of Harassment
Defining terms and outlining reporting protocol is fundamental, but too often sexual harassment has deeper roots in an organizational culture. “The way things are,” can serve important cultural functions, making paper policies irrelevant—even laughable.
Strong lines can be drawn from organizational cultures to the larger historical narrative—a male-centric one, with many women still at pay disadvantages, despite education or qualification. This history can serve to legitimize cultures of sexual harassment, as female targets are often blamed for exaggeration and sensitivity. The non-essential nature of low status positions, combined with need for a good recommendation, means a quiet resignation is often considered the best solution.
The Opposite Effect
But of course, not all corporations wield power through a culture of harassment. Still, headlines keep coming, revealing the wide reach of corporate sexual harassment—so what else is wrong?
Two 1998 Supreme Court cases determined that to avoid liability in a sexual harassment case, a company must be able to provide proof of training. However, quality of training is more difficult to measure.
Research shows typical policy language and training techniques make employees uncomfortable and defensive, often actually reinforcing gender stereotypes.
Ineffective and unprofessional, these techniques do little to meet the ultimate goal: preventing sexual harassment in the first place.
Sexual harassment policies and trainings are essential, but not enough. Practicing the following as values, rather than checking them off as tasks, may lead to higher engagement and mutual respect within a company.
1. Care for your culture. Routinely ask yourself uncomfortable questions. Are women in the lowest positions in every department? How accessible am I to my employees? What is my relationship like with my Human Resources professionals? Caring for your culture means not only calling out clear offenses, but habitually seeking to ensure equal opportunity, respect and civility between all workplace members. Give credit where credit is due. Encourage reporting through both words and actions. Robert Eckstein, lead trainer at the University of New Hampshire research group for sexual violence prevention, says sexual harassment training should be a regular work conversation topic. “We’re talking about generations of people getting away with abusing power,” Eckstein quoted for the New York Times. “Thinking you can change that in a one-hour session is absurd. You’re not going to just order some bagels and hope it goes away.
2. Educate bystanders. In effort to encourage sexual harassment reporting, many policies unknowingly place sole responsibility on the target. Unfortunately, reporting can put targets in a vulnerable position. If harassment is reported, targets may be viewed with skepticism, disbelief or suffer from isolation. However, unreported harassment is likely to continue and spread. It’s important for policies and trainings to include specific actions bystanders can take to disrupt, distract and confront harassing behavior. It’s also important for bystanders to care well for targets through validating experiences, reinforcing that targets are not to blame and offering witness in an HR report.
Relieving responsibility from the target puts responsibility on the whole culture, creating a healthier work environment for all employees.
3. Give attention to language. While you may wonder if people are awake during training or if anyone is reading the sexual harassment policy, the language used here shapes workplace culture. Typical policies tend to be all business, but a sexual harassment policy done well should be personal and emotional. If protocol is thoughtfully curated in an effort to truly care for employees, training becomes less about HR box checking and more about serving your people. It’s important to consider possible perceptions of your language as well. People react strongly to labels and quickly reject any categorizations they believe do not apply to them. It is unlikely one would admit to being a “harasser,” but one might admit to “predatory behavior.” Similarly, using the word “target” instead of “victim,” is less exploitive and more empowering. These small changes in language counter the portrayal of men as powerful and women as vulnerable, enabling women to feel confident and credible in the workplace. Actively opposing male/female stereotypes also serves to legitimize all types of harassment, regardless of gender or sexual orientation.
Building relationships and supporting employees is a critical part of preventing and recovering from an incident of sexual harassment. Need help? Interested in outsourcing a human resources team? Contact us!