Surveys, summaries, and statistics are all the rage now.   They are popping up everywhere, with everyone trying to get a handle on this social media thing.   We have been telling you (as if you didn’t already know) that social media use in the workplace continues to rise dramatically every day.   A new survey issued yesterday by the Society for Human Resource Management (“SHRM”) provides further fodder for the claim.

The survey’s findings are based on 532 “randomly selected HR professionals” who were asked various questions during the period from December 17, 2010 through February 1, 2011.   Many of the findings are extremely enlightening:

            –   31% of the reporting companies monitor their employees’ social media use, while 43% still block all access to social media on company-owned computers and devices.

            –   68% of the reporting companies use social media themselves to “reach external audiences”, including for relationship building and the promotion of products and services.   Almost half of the companies just started using social media for these purposes within the past 1 to 2 years.

            –   Facebook (45%) and LinkedIn (34%) appear to be the platforms used most for communicating with outside parties.

            –   73% of the reporting companies still do not provide any training to employees who use social media on behalf of their company.

Employer Take Away:   What should you as an employer take away from this development?   

We’ve all grown up with the adage that we shouldn’t do something simply because everybody else does it (“if she told you to jump off the Brooklyn Bridge….”).   Social media appears to be an exception.   Everybody is “doing” social media.   We all know that, and SHRM’s survey is the latest update on the numbers and anecdotes about how companies are using and not using social media in the course of their day-to-day business activities.

So the question remains, not whether you should recognize that social media exists in the workplace, but, rather:   Are you managing it effectively and appropriately?

We have talked a lot about the things you should consider when making employment-related decisions based on employee use of social media.   But there has not been much discussion about which employees are really at issue.   Do the same considerations apply when it is your supervisor who engages in the offending social media activity?   Not really.

By now you should be quite familiar with the refrain, and, in particular, the analytical framework that you should go through before taking adverse action due to your employee engaging in “protected concerted activity” under the National Labor Relations Act (“Act”).    But let’s look at it from a different angle:   Section 7 of the Act states that “employees” have the right to engage in protected concerted activity, and Section 8 makes it an unfair labor practice for an employer to interfere with the exercise of that right by “employees”.   However, Section 2(3) of the Act expressly provides that the term “employee” does “not include . . . any individual employed as a supervisor.”

Put simply, your supervisors are not “employees” under the Act, and, thus, do not enjoy the benefits of the “protected concerted activity” provision.  They could arguably be disciplined for calling the boss a “scumbag”, or otherwise railing about some workplace issue.  Which begs the question – How does the Act define who is a “supervisor”?   Here’s the definition:

“any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.”

Employer Take Away:   What should you as an employer take away from this development?   

In considering whether you can appropriately make an employment-related decision against an employee, at least for purposes of this whole “protected concerted activity” issue, you should ask at the threshold level whether you are dealing with a supervisor.   If the subject individual is a supervisor:

On the one hand, you may have less concern about taking action in response to certain social media postings or conduct because the supervisor is not afforded the right to engage in “protected concerted activity” under the Act.

On the other hand, you may have more concern about looking at what he or she is saying and doing, and may want to take relatively quick action against the supervisor who acts inappropriately, because many times your company can be deemed strictly liable for the acts of your supervisors.   The United States Supreme Court has required employers to take remedial action against discrimination and harassment in the workplace, and to have effective policies, training and practices in place to prevent future occurrences.   In this regard, you must understand and take note of the double standard that applies to your supervisory personnel.

Remember Pong?   Space Invaders, Missile Command, and Asteroids?  How about Donkey Kong?   Frogger?   Times have certainly changed, and I’m not saying it simply because I’m a bit melancholy from my high school reunion.  Some of us kick and scream when it comes to change.   For as singer Cee-Lo Green recently sang in perfect pitch:  “I guess he’s an xbox and I’m more Atari.”

But there’s no denying that Avatar is now the rage.   Not the 2009 James Cameron movie set in the 22^nd Century, but online avatar games.   An “avatar” is an object or personality representing the user’s alter ego, usually in three-dimensional form.    And an article in last Friday’s edition of the St. Paul Pioneer Press makes the key observation that “[t]he distinction between real-world property and goods and online virtual items . . . are becoming increasingly fuzzy.”

The author uses the example of the online game “Farmville” to describe workers playing these online games “in sweatshop conditions, for hours on end”, all of whom in the end maintain the same mindset:  “You know it’s not real, but you treat it like it’s yours.”    Among the social media and employment law issues that are sure to explode in 2012 and beyond is this concept of spending increasing time in virtual worlds through online video games – assuming virtual personalities to engage in virtual relationships – as a means of escape or play.   Either way, a host of new issues to consider will be waiting.

Employer Take Away:   What should you as an employer take away from this development?   

As always, the key is for you to at least understand that this corner of the social media world exists.   There are no fewer than three potential impacts:

1.   Relationships.  Committing virtual harassment, bullying, or discrimination in an online/virtual relationship will not likely prove to be a mitigating factor in court when your company faces potential liability for a supervisor’s gaming conduct.

2.   Information Protection.  Treating real property as virtual property (and vice-versa) could blur the lines and result in employees believing they are not really disclosing trade secrets or other valuable information of your company, or not inappropriately using similarly confidential information “traded” by a virtual friend who happens to be an employee of your competitor.

3.   Decreasing Productivity.   Without impermissibly infringing on your employees’ legal activities, your company should consider how best to manage and monitor work time so as to avoid employees playing games with your bottom line.

This past weekend, I went to my high school reunion.   I didn’t really know what to expect going in.    I had kept in touch with many former classmates and friends over the years, but many had drifted off the radar in the quarter century since we graduated. 

However, in the days leading up to the festivities, I found myself blaming social media, and particularly Facebook, for ruining some of the “mystery”.   Before even getting to the reunion, I already knew what many of my classmates looked like in 2011, where they lived, who they married, if they had kids, what their high scores were in Farmville, and what they happen to be eating “right now”.   My anticipation for the reunion was surely tempered by a bit of disdain for the Harvard kid whose invention would deprive me of the kind of good surprises that no longer occur in everyday life.

But, at the expense of making this post continue to sound like an overly-dramatic Oprah moment, my negativity about social media in this context was short-lived.  I realized that the limited time I had Saturday night could be spent learning more about the lives, endeavors, and experiences of my classmates, rather than having to get out of the way the usual “surface” information that Facebook already provided.  I was truly impressed with everything everyone had been doing over the years.   More importantly, I realized that the “speak to you soon” farewell would not have to ring hollow for another twenty-five years, as social media would afford an easy opportunity to maintain contact with friends and other professionals.

Employer Take Away:   What should you as an employer take away from this development?   

I’ve said it a thousand times, and my recent experience makes the case as well:  Don’t view social media negatively, or diminish its appropriate benefits.   In the same vein, don’t be afraid of it, don’t pretend it doesn’t exist, and don’t think you can regulate it away with an iron fist.   Do, however, embrace it, and learn how to manage it so as to reap its benefits for your company.

How can social media help you to attract valuable new employees to your work environment?

How can social media help you retain productive existing employees?

How can social media work to your advantage to help monitor your workplace and workforce, without eradicating morale and running afoul of the law?

It is to your benefit to reunite with your in-house and outside team to answer these basic questions.

Today’s New York Law Journal published an article I wrote entitled: “Deciphering the NLRB’s Stance on Social Media Issues.”   Feel free to click on the link, read, and comment if you would like.  

Prior blog posts have focused on recent action by the NLRB in conjunction with employment decisions based on employee social media use, and on claims made that workplace social media policies are overbroad and unduly chill employee rights to engage in collective activity.   The NLRB has been at it for almost exactly a year, and recently offered some clarity on its various positions in a memorandum summarizing recent case developments.   We all have the opportunity to learn from the past twelve months of action.

Employer Take Away:   What should you as an employer take away from this development?   

As you know by now, the issues involving the NLRB and social media are far from resolved, and the more interesting piece to the puzzle will be when we start to see more administrative and appellate judges (not to mention state and federal legislatures) determine the validity of the NLRB’s actions to date.   Nevertheless, my article in today’s Law Journal attempts to provide a step-by-step framework to help your company analyze whether your employment decisions and social media policies will at least pass administrative muster.

Ok, does it get much more annoying?  You’re finally focusing on your work and having a very productive Monday morning so far.   Then you get that familiar “bing” – the 82^nd e-mail of the morning already from 1 of 25 addressees on a prior e-mail, who responds “I agree” or “LOL!” or “Yes, Jon, let’s set that up” (and, oh by the way, you’re not Jon).  

Then, everyone else on the e-mail uses Reply to All to ask everyone else to quit using Reply to All, or “Please take me off this e-mail string.”  And then, people use Reply to All to apologize to everyone for using Reply to All.   And you find yourself reading and deleting for over an hour, and longing for the days when faxes were the newest “nano-second” technology.

It’s a little something called “netiquette”, which Wikipedia defines to include such common characteristics as “misuse of the Reply to All.”   Even Facebook has a dedicated page entitled “Educating Users On Reply To All Button Etiquette.”   Yes, social media is supposed to be easy and informal, and perhaps even provide your company with some benefits.   Still, you find this Reply to All thing to be ANNOYING (proper netiquette also suggests that one refrain from typing excessively in all caps).

But beyond that, it is potentially harmful to your business.   First, a Reply to All risks the disclosure of personal information, or company trade secrets to unwanted recipients, both inside and outside the four walls of your office.   Second, the one-click option of Reply to All makes it easier to send jokes and off-hand comments to others (even unintended) who may not welcome them.   Third, the lack of productivity can be staggering, when your employees are spending countless hours opening, reading, and deleting e-mails that have no relevance to their particular day or responsibilities.

Employer Take Away:   What should you as an employer take away from this development?   

We tend to focus so much on what you say in social media.   However, we also should focus on how you say it and to whom you say it.    Your company should consider training your employees on the appropriate use of e-mail, for example, and communicate the risks not only of saying the wrong thing, but of providing the wrong information to the wrong recipient, and the benefits of limiting electronic communications to those who need to know the message.

Ok, you may now delete.

Domestic violence is a serious issue.   So while we continue to spend time talking about the relatively lighter, and sometimes more entertaining, side of social media and employment law, appropriate attention must also be given to the important workplace issues that arise with greater ease and frequency due to social media’s grand platform.  

An online report issued yesterday out of Australia entitled the “Hornsby & Upper North Shore Advocate” highlighted that “Facebook and other social media are weapons used by perpetrators of domestic violence[.]”   The writer, a community support worker, suggested that people should know how to appropriately “block people” in certain situations and how to recognize signs that one is a victim of online domestic violence, since domestic violence “is also non-physical means like psychological abuse and verbal abuse.”

Employers should know that domestic violence is certainly not just a moral hazard, but also comes with certain legal implications as well.   In fact, many states have laws that include domestic violence victims as within a protected class.  For example, the New York State Human Rights Law was amended on July 7, 2009 (§ 296[1](a)) to protect victims of domestic violence from employment discrimination and retaliation.  

And New York City went further, making it an unlawful practice under the City’s Human Rights Code (§ 8-107.1[2]) to discriminate or retaliate against someone “because of the actual or perceived status of said individual as a victim of domestic violence, or as a victim of sex offenses or stalking.”    Section 8-107.1[3] of the City Code even imposes a requirement on employers to make a “reasonable accommodation” to the needs of victims of domestic violence, sex offenses or stalking.

Employer Take Away:   What should you as an employer take away from this development?   

This is Domestic Violence Awareness Month, and no better time to think about another important issue that is unfortunately not going away.  It is axiomatic by now that your company needs to have policies addressing anti-harassment and anti-discrimination.   But your policies, practices and employee training must also address those issues as they pertain to social media use, and, specifically, to domestic violence issues that may also arise.    To recognize that social media can be used to further violent intent, and to appropriately address the needs of those who fall victim to that behavior.

To say that employees’ personal lives don’t cross over into the work day and work place is to ignore what we know to be reality.   When it comes to social media and your workplace policies, it may be simple to block out the bad people and the bad issues.   But you should not, and cannot, bury your head in the sand and pretend the issues do not exist.

Literally translated, the term means “a household of three.”     And when it comes to the hot button issue of the NLRB’s new employer posting requirement, we now have all three houses of government involved.  

On the executive pole, we have the NLRB, which initially announced on August 31^st that virtually all employers would be required to post an 11-inch by 17-inch poster advising employees, among other things, of their right to unionize (that compliance deadline has since been extended from November 14^th to January 31, 2012 “to allow for further education and outreach”).   On the judiciary pole, three courts have been asked to enjoin enforcement of the NLRB’s posting rule and to strike down that rule as beyond the NLRB’s jurisdiction.   Two of the cases have been filed in D.C., and one has been filed by the United States Chamber of Commerce in South Carolina – a state not generally enamored with the NLRB.   No rulings yet from any of the courts.

Now, we have the legislative branch jumping into the contentious party.   Having apparently solved the nation’s economic crisis, energy dependence, and dwindling world peace, the United States Congress has fixed its bedroom eyes on this posting issue.   Unlike the hundred-page, if not thousand-page, pieces of legislation that normally find their way onto the legislative floor, this new bill is one page, and one sentence long:

“The proposed rule issued by the National Labor Relations Board entitled ‘Notification of Employee Rights Under the National Labor Relations Act’ (76 Fed. Reg. 54006 (August 30, 2011)) shall have no force or effect.”

The intent is pretty clear.   Who will come out ahead in this dance?   We will continue to update developments on this issue involving an interesting threesome, but not a lot of love.

Employer Take Away:   What should you as an employer take away from this development?   

It is clear that the role of government in matters affecting the workplace (involving social media and otherwise) is a highly-charged issue, and one that is still not going away.   As I have blogged before, I think the concern about posting employee rights under the NLRA is slightly overstated, but I certainly do share the outrage of employers who believe that this latest posting requirement is perhaps another step in a course of desired government activism into the private sector. 

Either way, employee rights in the workplace are on everyone’s front burner.   That makes it more important than ever to ensure that any decisions you make, or policies you effectuate, regarding your employees’ activities are well grounded in fact and law.