Social Media And Work: Is It Ever OK To Complain Online?

Transcript

CELESTE HEADLEE, HOST:

This is TALK OF THE NATION. I'm Celeste Headlee, filling in for Neal Conan from Washington. These days Facebook and Twitter are almost ubiquitous, and online our friends and family members are just as likely to talk about their jobs as their children and spouses.

In many ways we've lost sight of that old line between work life and personal life, and that can be problematic because many workers have lost their jobs because of things they posted on social media sites. In response, the National Labor Relations Board has issued new guidelines that more narrowly define what kind of posts on Facebook or Twitter can actually prompt an employee's dismissal.

So employers, we want to hear from you. When did you have to draw the line on social media for your employees? And for employees, when did you cross that line? Our number is 800-989-8255. Our email address is talk@npr.org. Or join the conversation from npr.org - click on TALK OF THE NATION.

Later on in the program, after Europe's outrage over horse meat sold as beef, we're going to talk about why some foods are taboo in some places and not others. But first to social media and the workplace. Joining me now from a studio at the New York Times is Steven Greenhouse. He's the New York Times labor and workplace reporter, who has reported on these new social media guidelines.

So let's talk just about these new advice - this new advice from the National Labor Relations Board. And what exactly does it say is OK to fire an employee for, and what is not OK?

STEVEN GREENHOUSE: Hi, Celeste, good to be here. So what the National Labor Relations Board says is that when you use Facebook, Twitter and say something that upsets your employer, your employer can't necessarily fire you. There are limits on what an employer can and cannot restrict you from saying.

You know, the National Labor Relations Act, this law passed in 1935 that gives workers the right to form unions and to work together to improve workplace matters, you know, interpreting that law, the National Labor Relations Board says that companies cannot ban you from writing on Facebook or Twitter, you know, something to a co-worker and complaining about working conditions, or in saying that you're not paid enough or saying that your boss stresses you out and makes life too difficult.

But the National Labor Relations Board also says that to be protected you have to be conversing with another worker, communicating with another worker, whether at the water cooler or on Facebook, it has to be considered cooperative concerted activity, and it has to be about, you know, ways to improve working conditions. It just can't be a lone wolf, a lone worker ranting or venting, saying my boss is the world's biggest fat jerk and I can't stand him.

If you post something like that on Facebook, it's going to be considered, you know, an individualized lone rant, and you're not going to be protected, whereas if you write to a co-worker and say, you know, our boss, you know, shouldn't have yelled at us today, and besides, it stinks only earning $8 an hour, we should, you know, get together and do something about it, that's the type of so-called concerted activity, Celeste, that the labor board says is protected.

HEADLEE: OK, so let me give you an example, Steven. Let's say I put on my Facebook page: My manager is such a jerk. That's not protected.

GREENHOUSE: Generally not. There are always exceptions...

HEADLEE: What if - right, and let's get to some of these exceptions. What if somebody responds: Are you talking about having to work double-shifts all the time, and I say yes, that's just not fair. Then is it protected?

GREENHOUSE: It might be. If you just go on Facebook and write just to the world or to your mother, my boss is a jerk, that's probably not going to be protected. But if you're in a string of communication, a thread of communication with your co-workers, and you're discussing, say, wages or having a hard time getting the vacation time you want, and in the middle of that conversation you say, you know, Jerry, my boss is such a jerk, that might be considered protected.

But, you know, there are limits. You know, if you say truly outrageous things about your boss or disclose, you know, horrendous confidential things that your boss would never want to see publicized in a million years, or false things, you know, some of these protections, even when it's in a conversation with your co-workers, will not be protected.

HEADLEE: All right, so how exactly - I mean do employers pay attention to these NLRB rulings? Do they follow them when they create their social media policies?

GREENHOUSE: I think they are following them more than before. You know, the National Labor Relations Board, which is a five-person panel, normally a five-seat panel in Washington that oversees labor relations for the nation's private-sector companies, it has issued three long reports, three advisories that kind of, you know, tell companies this is what you can do, this is what you can't do. It's also issued a series of decisions.

And you know, the bottom line of what the labor board is saying is if you, an employer, a human resources director, issue these blanket policies saying thou shalt not use social media to ever criticize your company or put your company in a negative light or say something negative about your boss, the labor board is going to say that is overbroad because it would improperly deter, discourage, employees from talking about things like, you know, boss losing his temper too often or a boss, you know, subjecting, pressuring workers to work in a dangerous situation, or a boss making you work, say, overtime without paying overtime.

You know, the labor board is saying you have every right to communicate with your co-workers, even in a way that criticizes your boss or puts your company in a negative light, if it involves working conditions in a way that's aimed at improving things on the job.

Now, one caveat I should make very clear, Celeste, so there was this, you know, court decision two, three weeks ago that said that two of the three sitting members on the labor board were not appointed properly, that they're recess appointments.

HEADLEE: Right.

GREENHOUSE: And these judges said that these labor board members were not seated properly, that the labor board did not have a proper quorum late last year when some of these social media decisions were handed down. So that calls into question whether some of these social media decisions are really in effect.

Meanwhile, you know, the labor board's permanent staff has been issuing these advisories on what employers can and cannot do, and those are generally considered valid, still valid advice.

HEADLEE: Steven Greenhouse is the labor and workplace reporter for The New York Times. Let's also bring into this conversation Mari Smith. She's a social media consultant, author of "The New Relationship Marketing: How to Build a Large, Loyal, Profitable Network Using the Social Web," and she joins us from by phone from her office in San Diego. Welcome, Mari.

MARI SMITH: Thank you, glad to be here, Celeste.

HEADLEE: How important is a social media policy for a business? Is it only necessary for a great big huge company, or does a small business with five or 10 people also need a social media policy?

SMITH: It is absolutely vital whether you're a sole entrepreneur or a Fortune 500 company. Every single business and businessperson should have a social media policy.

HEADLEE: So I mean how seriously do they take these guidelines from the NLRB, right? I mean what do you tell companies to do when they're creating that social media policy?

SMITH: Well, there's certain components that absolutely must be included, and obviously it comes down to enforceability. Ultimately the way that I see the social media policies is it all emerges from the company culture. When you have a great culture of community both inside and outside the business, like social from the inside out, it's fostered on mutual respect, there's common sense, there's common courtesy, then you build the social media policy on that.

But the guidelines are really there to give every employee a sense of, you know, what they can and can't share, whether they are operating on behalf of the business or they're in their own personal profiles. But really you want to have a safe environment so that employees can share non-proprietary subject matter and to really actually show off, in a way, to management and to be recognized that they can do really well with the social media for business and represent the brand or the company in a really good light.

Really, everybody, all employees, and this goes into the social media policy, all employees need to know what to do in the event of a crisis or a PR faux pas. Certainly everybody needs to know how they need to be complying with the state or federal social media regulations and laws and rules, et cetera.

But yeah, my approach is generally really wanting to focus in on the company culture and the values of the company and how the employees can really be empowered to love the brand, to love working for the company. It breaks my heart, to be perfectly honest, when, you know, you can go and do a search online and you can see every minute, there's somebody on Facebook just ranting about their boss. And I just think it's really sad.

HEADLEE: Well, let's go to a call here. This is Charity(ph) in Kansas City, Missouri. Our question was for employers: When have you had to draw the line? But you were an employee that I guess at one point stepped over the line - right, Charity?

CHARITY: Yes, apparently I did. It was 2009, and I'm a former journalist, and like a lot of my former colleagues found myself in 2009 waiting tables instead of doing journalism. But I was working at a very upscale steakhouse, and I absolutely loved the job and was a proponent for the brand. But it was just so rife with material, I did start writing a - kind of a behind-the-scenes look at the upscale dining culture.

And it was a funny blog. I did not use the name of my company or - which is a national large company, or my name when writing the blog. But, you know, most of my server co-workers knew about it, and it did eventually come to management attention, and I was terminated for it.

HEADLEE: But the happy ending for you was you got picked up by Reader's Digest, right?

CHARITY: That's correct.

(LAUGHTER)

HEADLEE: Well, thank you very much, that's Charity in Kansas City. So Steven Greenhouse of the New York Times, does the NLRB rulings help somebody like Charity at all?

GREENHOUSE: My sense is, you know, Charity was just writing on her own, it wasn't signed by three co-workers saying we're describing what things are like in this steakhouse and we're writing this with the intention of trying to improve working conditions. My sense is Charity was trying to write a wonderfully literary, Joycean essay that would attract even Reader's Digest.

Just - and Mari said some very good things. I just wanted to add one or two things. She said, you know, of her advice for companies - some companies issue social media policies saying, you know, thou shalt not disclose anything confidential. And the labor board says you can't have something so overbroad.

You know, if you think that discussing another employee's wages or discussing the health plan is confidential, you can't prohibit workers from discussing that. But the labor board says, you know, but please, companies, be specific. You are allowed to prohibit, you know, writing certain things on social media. You're allowed to tell employees you can't divulge trade secrets, you can't divulge when hot new products are going to be introduced. You can't talk about the private health details of your co-workers or managers.

So it's very important not to use blanket rules but to be very, very specific. And as Mari said, it's fine for companies to say that, you know, when you're - whether it's speaking on the telephone or talking with customers on Facebook or whatever, you have to maintain proper business decorum. I mean that's totally accepted.

But again, you can't say thou shalt never say anything negative about the company ever ever. That goes too far.

HEADLEE: Steven Greenhouse is the labor and workplace reporter for the New York Times. He's going to stay with us. We're talking about social media and work, what you can and can't say legally. So employers, tell us about a time when you had to draw the line. And employees, when did you cross it? 800-989-8255. Or drop us an email to talk@npr.org. I'm Celeste Headlee. This is TALK OF THE NATION from NPR News.

(SOUNDBITE OF MUSIC)

HEADLEE: This is TALK OF THE NATION from NPR News. I'm Celeste Headlee. If social media is the modern water cooler, the place we go to complain about the latest "Downton Abbey" episode - and I'm sure there's a lot of you who are complaining - or to crow maybe over our genius child's latest feats, it's only natural we'd turn there to talk about work, also, both the good and the bad.

But that becomes tricky for employers, who know that what's said online can reach far beyond one's circle of friends. So recently, the NLRB, that's the National Labor Relations Board, has drawn some conclusions about what kinds of online speech can get an employee fired, some useful guidance for companies that are hoping to draw up policies around social media use and for employees who want to express themselves without losing their jobs.

And we want to hear from you. Employers, when have you had to draw the line on social media? And employees, tell us about a time when you crossed that line. The number is 800-989-8255. Our email address is talk@npr.org. Or go to our website, npr.org, and then click on TALK OF THE NATION.

Let's hear from Brent(ph) here in Long Island. Brent, you're an employer, right?

BRENT: Yes, I am. We have about seven employees at the moment, and I had a situation with - I'm actually friends with two of them online, on Facebook, and a couple of longstanding employees I've had for about 10 years, one of them, you know, had pictures of herself partying online and things like that and putting pictures of herself sort of, you know, holding the wine bottle on all fours kind of thing.

And, you know, at first I approached her, and I said: Do you have an issue with alcohol? And she said no, no, I don't. And I just sort of had a conversation like, you know, I'm concerned, you know, these are public pictures. You're putting this out. And it was - I got I know, I know, just a one-time.

And anyway, we had a meeting about it actually, and told the employees that you're - it's more - it's less about representing our company, more about just for you personally, I care about you as a person, and I wouldn't want later on this to come back to you, you know, pictures that are sort of - you know, not just holding a wine glass enjoying a drink with friends, but, you know, completely trashed and, you know, that type of thing.

She did not put the - I haven't seen pictures like that, and she really, you know, took heed to the warning and cleared it up.

HEADLEE: Thank you very much. That's an interesting point. That's Brent calling from Long Island, New York. And Steven, I wonder: Does anything in the NLRB decisions, either present or past, address this? Because that sounds to me like when we talk about professional decorum, maybe that can go a little bit too far, intrude a little too far into your personal life.

GREENHOUSE: That would not be - what Brent talked about would generally not be protected by the National Labor Relations Board because it's just people acting alone, being exhibitionist or just plain dumb without, you know, working hand-in-hand with co-workers for, you know, mutual aid and protection or improved working conditions.

But there's another issue. Six states now, and most recently Illinois and California, have passed laws that bar employers from asking either job applicants or current employees from turning over their Facebook password in case an employer wants to rummage around to see whether there are drunken pictures of you like that.

But also, you know, and, you know, young people who are applying for jobs should be very cognizant of this, a lot of employers do heavy research on you when you're applying for a job and see what they could find out there on the Web about you, pictures on Facebook, pictures with friends, you know, drunk and frolicking.

And, you know, that could really hurt you when you're applying for jobs. You know, there are serious Web searches, Google searches by employers, and if there's something embarrassing about you, it could really hurt. And I think Brent gave his employee very good advice.

HEADLEE: Let's go to bring Matt Watson into this discussion. He's the author of the "Bitter Barista" blog, and he joins us now from member station KUOW in Seattle. And you got fired, Matt, for tweeting about customers who came into the coffee shop, right?

MATT WATSON: Yeah, thanks for having me. Yeah, so...

HEADLEE: Thanks so much for joining us. So yeah, tell us what happened.

WATSON: So I started this blog about three weeks ago called "Bitter Barista," which basically was just a place for me to aggregate my workday tweets working as a barista for the last decade.

HEADLEE: Now why do it, Matt, while you were still working there? Even if you didn't say the name of the company, why not save that up for your book later?

(LAUGHTER)

WATSON: You know, I think people from my generation, social media is pretty ubiquitous, and it's just kind of a natural reaction to turn there. The idea for my generation of saving content for a book doesn't make a whole lot of sense, I guess. We kind of like to put it out there.

HEADLEE: Was there a social media policy, a printed policy, for you?

WATSON: No, I mean, I just worked for a coffee shop. I've never worked for a small business in the food service industry that has a social media policy. So there was nothing spelled out from the start, no.

HEADLEE: Well, let me write - let me read you something that you wrote about your boss. You wrote, and I quote: My boss watches the cameras at the cafe, but he'd save time if he just followed my Twitter to see that I'm not working.

(LAUGHTER)

HEADLEE: Let me read a couple more: I put a macchiato down on the bar and called it out. A customer walks up, drinks it in one gulp and then says I ordered a mocha. And here's another one: If your coffee order takes more than 20 seconds to say, you've forfeited your right to complain about the price. Do you think that your firing is fair? I mean, it seems to me like those are...

WATSON: Oh yeah.

HEADLEE: Oh you do.

WATSON: By all means. Yeah, you know, I originally started out the website to be anonymous, and I kind of underestimated the curiosity of the Internet to find out who I was. So about a week and a half ago, another coffee website decided to do some Googling and find out who I was and ended up calling the shop.

And once it became not anonymous anymore, it was pretty clear that we couldn't - I couldn't continue working there.

HEADLEE: Are you sorry? Did you enjoy your job there?

WATSON: Oh yeah, I loved my job. You know, there's a little regret, but at the same time, you know, I did what I could to keep it anonymous, and I'm not really sure on the motives of the people that outed me. So I don't really have any regret, and I'm not entirely sorry. I wish it had gone down differently, but no.

HEADLEE: It's a pretty - I mean, I've read it. It's pretty entertaining. You've got a future if you're going to just write about - blog about stuff. That's Matt Watson.

WATSON: I appreciate that.

HEADLEE: Who is author...

GREENHOUSE: Can I just jump in?

HEADLEE: Go ahead.

GREENHOUSE: So Matt, you have a great sense of humor, but it sounds as if the guy who heads your bar, your coffee shop, doesn't have as good a sense of humor as he does. And he's - you know, he's very sensitive to things that might put his business in a poor light.

There was a case somewhat similar - there was a case somewhat similar to yours involving the NLRB where a bartender at a restaurant in a Chicago suburb was upset that he hadn't received a raise in five years. So he went onto Facebook to say - to complain that the restaurant's customers were a bunch of rednecks, and he said, you know, he'd hoped they'd choke on glass when they were driving home drunk.

So he went to the National Labor Relations Board and said, you know, I'm complaining about not receiving a raise. You know, this is protected activity. And the labor board says basically, you know, bunkum bull, you were just venting, it was actually in a note to his stepsister who was asking him how work was, not a note to co-workers.

And they said, you know, you're not really discussing working conditions, you're not doing it in concert with other employees. This was just venting. Forget it, you're gone.

HEADLEE: All right, that is Matt Watson, he's - well, you just heard Steven Greenhouse of the New York Times, but Matt Watson was with us, author of the Bitter Barista blog, joining us from member station KUOW in Seattle. Thank you very much. You have a job now? Are you still unemployed, Matt, or...

WATSON: I'm still unemployed but working on some writing stuff and some music stuff, so...

HEADLEE: That's probably a good idea.

WATSON: Absolutely.

HEADLEE: No more coffee shops.

(LAUGHTER)

HEADLEE: Let's take a call here. Thank you very much, Matt. Let's take a call here from David(ph) in Chico, California, and David, tell me about the line that's been established at your workplace on social media.

DAVID: Well, we're - I'm in kind of an unusual situation in that I'm both a hospital nurse and also a union representative for nurses. And so I get involved in both sides of this National Labor Relations Board. And the line that we tell people is that again, it is just what Steven has said, that if it's concerted activity, and in fact we have a union Facebook group at the hospital that we use for communicating on union issues and things like that, and that's a perfectly protected activity under those guidelines.

But we tell people really clearly, don't get involved in just ranting about your work. And most especially don't do something that is ranting about a patient or might somehow give patients the impression that they wouldn't get as good care as anybody else if you, you know, were upset at a certain category of patient or something like that.

You know, this could be the - say, the emergency room nurse upset with the patient who's coming in for the third time this week, or something like that.

HEADLEE: Right, well, that sounds like pretty sensible advice. That's David calling from Chico, California. Let me just ask you, really quickly, Mari Smith, you consult people on this. What - are businesses concerned, do you think, about their liability should they fire someone and it be found to be an unlawful termination?

SMITH: Gosh, yes, oh, businesses should be concerned about this of course and always want to be representing the company in the best light. And, you know, it's interesting, and there's also something, what I like to call the back channel. And even though, you know, something might be going online, and maybe it complies with the laws, and it's shared in a personal social profile, but it still will hold the company in a bad light.

I mean, there was an example just a few days ago, without disclosing the identity of these people, but there were two - a couple of heads, of major known names in tech companies were over in a foreign country and romping around, naked and drunk. And somehow, a video ends up on Facebook. And a whole bunch of us are chatting in the background about this. Nobody's dared putting any comments - well, people in my circle. But they were getting comments. And that interaction, that behavior has forever impacted my impression of these companies.

HEADLEE: Yeah. Well if it can happen to Prince Harry, it can happen to anybody, right?

SMITH: Yeah.

(LAUGHTER)

SMITH: Right, exactly.

HEADLEE: Let's take another call here, Anthony in Lexington, Kentucky, and you were fired from your work. Can you tell us that story, Anthony?

ANTHONY: Yeah. Hi. I was working for a Catholic church in Lexington, Kentucky, and posted on Facebook that I was in a relationship with another man. I had my Facebook profile locked down to only about 40 viewers, and they cited Facebook and said that I wasn't in good standing with the church and told me that I could either resign or be fired.

HEADLEE: Oh, I'm very sorry that happened to you. But let me take this to Steven Greenhouse. Thank you very much for that phone call. That's Anthony in Lexington, Kentucky. Steven, protected, not protected? That's a rough one.

GREENHOUSE: It's a rough one. I guess, Anthony, if you were discussing your sexual orientation with a co-worker, and I'm - in theory, talking about how we need to try to change the church, good luck, to make it more tolerant of gays, one could say that you were advocating together to improve working conditions.

But you know, government agencies, as you know, are very, very reluctant to interfere in the internal workings of religious organizations. So even though, Anthony, it might be considered, you know, cooperative concerted activity to help each other, I think the labor board is not going to really want to get involved in telling the Catholic Church what to do.

I want to add, Celeste, there was one case that the NLRB was involved in, that was very similar to what David and Mari were just discussing before. You know, a female employee...

HEADLEE: David was the...

GREENHOUSE: David from Chico...

HEADLEE: Right, the nurse.

GREENHOUSE: ...the nurse. That there was a case in which a female employee at a facility for homeless people with metal health issues, she was fired after she wrote on Facebook that it was, quote,"spooky," unquote, working there on the overnight shift. And this woman also wrote on Facebook: My dear client - this was a homeless patient - my dear client - is cracking up at my post. I don't whether if she's laughing at me, with me or at the voices inside her head. And the board, you know, of the institution saw this post and fired her, and the labor board upheld that saying, this did not really involve conditions of employment, it wasn't done with co-workers and that she had clearly violated the home's policy of not disclosing confidential information about clients.

HEADLEE: You're listening to TALK OF THE NATION from NPR News. So let's talk a little bit more, Mari, about how exactly you counsel employers to create social media policies. How much leeway do you think they should give? I mean, is it safer for a business to just clamp down on it completely or is that - is there a danger in being too restrictive?

SMITH: I think there is, Celeste, yes. I wouldn't recommend being too restrictive because people are going to find ways to, you know, go outside the lines anyway, I love Zappos' policy, Zappos, with their 10 core values and the company culture emerges from that, and their social media policy is very, very simple. It's use your common sense, use common courtesy. If you're not sure, seek permission. Be appropriate and polite, diplomatic, respect confidentiality, et cetera. However, we have to always remember that wonderful line from the movie "The Social Network," that the Internet is in ink. You know, you can't really go back and delete it. So the thing with Zappos, that kind of open approach will not work for every company.

And so, one of the first things that I do with my clients is to really do an assessment of where they're at with their current company culture and what the sentiment is, if you will, of the employees and to talk to employees to find out, you know, the kinds of things that they are sharing. Often, you know, people will be sharing things on Facebook thinking it's locked down to just a few friends, and in fact, they're inadvertently sharing things to public.

HEADLEE: Well, that's what Anthony found out, the caller.

SMITH: Exactly. Yeah. That's so unfortunate and plus, you never know it. My rule of thumb is this is that you never, ever want to share anything online at all, ever, ever that you wouldn't want on the front page of The New York Times, found in a Google search in years to come and proud of your own mom to see. Those are my simple points...

HEADLEE: Although, Steven could tell you, Mari, how hard it is to get something on the front page of The New York Times. But let's take a call here...

(LAUGHTER)

HEADLEE: ...from Katherine(ph) in St. Louis, Missouri. Katherine, you actually helped to handle social media for a large bank, right?

KATHERINE: Yes.

HEADLEE: What kind of counseling did you give?

KATHERINE: Well, basically, it was strategy, just getting up and going, and then I had to forge a very valuable relationship with Legal and Compliance, and then also HR. But what we were finding was that some employees would get to their bank branch and then check in and actually, probably, tell people that they were sick or they would talk about, you know, a customer that would come in. And so, not only were they checking in and letting everyone know what branch they were at, but then also letting people know that they were sick too. So...

HEADLEE: Your mean like when you post on Twitter or Facebook and it tells the location to where you are?

KATHERINE: Well, that or you can use Foursquare to check in. And a lot of times, employees will, you know, want to be the king of that particular branch, so it...

HEADLEE: The mayor.

KATHERINE: ...depends on how many...

HEADLEE: It's mayor, Katherine.

KATHERINE: The mayor, the mayor. Right, right.

(LAUGHTER)

KATHERINE: And so, yeah. And so we would go to HR and, you know, their hands were really tied that, you know, it's such a new landscape that I think a lot of HR departments are just having trouble navigating. You know. there's just so little information.

HEADLEE: You think? Yeah, that's a really - that's great point. That's Katherine in St. Louis, Missouri. Thank you so much, Katherine. And this, this is a good point that she's brought up, Steven, how new it is. For example, what if I just post a picture on Instagram, can I get fired for a picture I take at work that somebody thinks is not flattering?

GREENHOUSE: You know, generally, in the United States, employers can fire you for virtually any reason. If they don't like the color of your shoelaces, you know. You know the reasons you can't be fired, you know, because of your race, because of your religion, because of your national origin. But they can fire you because they don't like the way you blink your eyes. So if you post something on Instagram that they don't like because it's yellow and not red, in theory, they could fire you. But if you post something on Instagram saying, you know, our wages are too low, we have to work together and I'm posting this with my...

HEADLEE: That's protected.

GREENHOUSE: ...the person who sits next to me, that's protected.

HEADLEE: Steven Greenhouse is the labor and workplace reporter for The New York Times. We talked to him from his studio there. Mari Smith is social media consultant. We spoke to her by phone from her office in San Diego, California. Thanks to both of you.

GREENHOUSE: Thanks very much. Nice to be here.

HEADLEE: Coming up, the horse meat scandal that is rocking Europe right now. It leads us to ask, why are certain meats taboo in certain places? I'm Celeste Headlee. It's TALK OF THE NATION from NPR News. Transcript provided by NPR, Copyright NPR.