You shouldn’t fire that employee who complained on Facebook

March 18, 20141:52 pm
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Its every manager’s worst nightmare. Discovering their team member has taken to a very public social media platform like facebook, or twitter to make negative comments about them or their business. And many businesses to invest quite a bit of time monitoring employee social media profiles, keeping a weather eye for any inappropriate commentary or behaviour.

While no company should want or approve of such behavior, is simply firing the employee the best option? Or the legal one?

In late 2012 in the United States, the National Labor Relations Board determined that employees who utilize social media to criticize their employer or a co-worker are protected under the law if more than one employee participates. According to the act,

Sec. 7. [§ 157.] Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment.

If hypothetically, two employees at a business took to facebook to comment from their personal computer after hours- “X feels that we don’t help our clients enough- My fellow coworkers how do u feel?” and got into a detailed discussion about it- would this be ground for firing?

If one looks at the wording of the NLRB act- this facebook discussion could be interpreted as the “employee’s right to self organization” and “concerted activity for the purpose of collective bargaining” as the complaint is job related.  More importantly, since such criticism could potentially cause them to lose their job, this is a discussion which has the clear purpose of providing mutual aid or protection,and therefore the entire activity can be protected under the law.

In short- if more than one employee is taking to social media to express their unhappiness over a particular work related issue, firing all of the perpetrators is not the answer- and could open you up for a potential lawsuit. It also is like slapping a quick fix bandaid for a deeper problem.

In fact, the National Labor Relations Board has already reviewed 129 cases involving social media already, and recently appointed a department specifically to deal with issues related to work and social media. The organization has also, in several recent decisions, ruled against employers who fired workers for complaining on social media sites about work conditions.

In Singapore- the Employment Act protects employees seeking to address grievances, but it does encourage them to address these grievances via internal channels before seeking external redress. It also stipulates that employers investigate any potential incidents of misconduct- which could include participating in damaging social media chatter- before taking disciplinary action or terminating an employee and that employees can seek the assistance of the ministry of manpower if they feel they have been dismissed unfairly. This too afforts a measure of protection to employees who are seeking to address genuine grievances.

This however does not mean that employees have carte blanche to say whatever they want on social media. Under the NLRB act- if the commentary is made by a single employee with no corrorberation from other employees- and does not contribute towards collective bargaining or providing mutual aid or protection (for example inflammatory commentary against a racial group or a religion, or personal attacks on members of management) these statements could be considered libel, and business owners and managers do have the right terminate employment and even seek damanges.

The bottom line though is that HR professionals, managers and business owners need to be aware of Social Media, its reach and impact, and take steps to educate employees on what they can and can’t do in this space, what they can and can’t say. It is in everyone’s best interest for a company to take the time to develop a Social Media Policy, and depending on the nature of the business, to even organize Social Media seminars where employees can be educated on what social media is, and  educate employees on how they can use social media in a way that will benefit their business objectives by advocating the brand online, becoming brand ambassadors for the business, and even participate in content marketing activities.

And finally, when an issue does arise on social media, sometimes firing the employee(s) may not necessarily the best  best option. If they are voicing their views on your business, it is worthwile to investigate if there is any validity to what is being said, and address the problems being identified. In the end you will be left with an employee who will now take to social media to rave about your track record as a wonderful employer and how you fixed their issues.

In the social world- a problem solving hero always gains more respect.

Have you seen or been a part of any such social media issues? How did your company deal with the crisis? Do you think you need a Social Media Policy at your company? Write in with your views to divya@hrinasia.com

 

Next read: Employee Engagement Made Simple

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Article Contributed by HR in Asia‘s Team.

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