Social Media Q&A with Lara Makinen, PHR
How does a loose social media accountability effect HR professionals in their responsibility to their fellow employees?
That is the question of the hour, is how does the HR professional navigate this minefield so that not only are they doing right by their employer, but they're also still keeping the privacy protected of their employee. That is a huge can of worms.
A couple weeks ago, Kurt Schilling, the hall of fame baseball player, was on an assignment for ESPN. On his personal Twitter handle, he tweeted an offensive tweet that got a lot of people up in arms. In response, ESPN suspended him from his assignment. What is your response to that kind of incident?
It goes back to that minefield. I see both sides. As ESPN, I can see that they're protecting their brand. Mr. Schilling is a high profile employee with them. He put something out there that is not favorable. I can see why ESPN took action, because they don't want to associate themselves with the post that Mr. Schilling put out there. So they're trying to show the world that this isn't okay with us, and ESPN does not condone this behavior, it's not okay, that's not who we are, and we're going to take action so the world sees them as not supporting what Mr. Schilling put out there.
However, from Mr. Schilling's side, he, as you mentioned, posted this from his personal Twitter handle. It is unassociated with ESPN. He was not posting this on behalf of his employer or in any capacity of his job. He simply was putting something out there based on his own personal opinion of something. Then you have to look at it from the people's side, and you have to think about first amendment rights. Mr. Schilling is entitled to freedom of speech and to express his personal opinions how he sees fit. I think we definitely have some strong camps on either side.
What I can share with you and your listeners is an employee from a different company who was fired because he posted on his Facebook page. I'm not going to use the foul language but I think you'll get from my modifications what he's saying. He posted on his Facebook page this about his supervisor, he said and I quote, "nasty mother-F-er", "F- his mother and his entire F-ing family". That's a serious statement. Those are horrible things to say about anybody, much less your supervisor. It makes you wonder if there were threats intent. Obviously we have a situation that needs to be handled within the workplace. The outcome of this is that he was actually fired for it.
The NLRA got a hold of this, and the board issued an opinion stating that this constituted as protected activity under the NLRA. It makes us in Human Resources take a step back and say, “Wait a minute. How is this protected activity?” Again, I think it goes back to your personal first amendment rights to express yourself freely and the NLRB has been very ... they've taken a very strong stance about allowing people to express themselves and not allowing or having strict monitoring of what people are saying either in the workplace or within social media. It can be seen as killing or prohibiting protected concerted activity under the NLRA.
Especially when we're dealing with union organizations coming into the workplace, we certainly don't want people to feel like they're killed from expressing themselves. That's why the NLRA has put their two cents into the matter. We definitely have to watch our backs in how we take a stance on it and what we do, and the parameters we can to protect the work environment, and the parameters we need to set to protect our employees. It just shows you how crazy it is out there.
What about a small business? Someone at a small business manages Facebook and Twitter accounts for the business, and they represent the business under the name of the small business. What happens there when they post something that is highly offensive, and they get in trouble? Do the same rules apply?
Off the top of my head, I don't know what the minimum employee number is to be covered under the NLRA. Unfortunately I don't have that number at the tip of my memory.
So the application of the decisions by the NLRB depends on the size of your company?
I would have to look online. Depending on the government agencies, some provisions are for everyone, some are for 15 or more employees, some are at 50 or more, I haven't looked at the NLRA to see what their coverage is. It could quite possibly be all employers, but I couldn't say that with 100% confidence.
How much weight do decisions made by the NLRB hold?
I personally, I think that it holds a lot of weight. I think that the more opinions that the NLRA board issues on a specific matter, the more clout that it carries. You better believe that if this went in front of the court system, you better believe that whatever side it favors most, that side is going to have all of these NLRA Board opinions in their back pocket, and say, "okay, they've issued that this isn't okay," and therefore the court needs to come to the same conclusion. That's going to be their argument. I think that that is a strong defense on whatever side, it is most impactful.
What's the role of the HR manager when an employer comes against an employee?
I think that it's going to be a case by case situation. I think in the case of Mr. Schilling versus ESPN, I think that the manager, if this was public content, if this was something on a private site, then we have to think about how did the employer know about it? If it's on a private site, for example, a Facebook page or a Twitter page that is not shared publicly, but only within certain views, and you set up those parameters when you create your page, then we run into, okay, have we violated any privacy issues obtaining this information?
That's the first step. Is to see, how does the employer obtain this information? That's the first minefield you need to get through. If this is on somebody's private site, then the employer really has no business snooping, right? Quite possibly, it could come to the employer from a concerned coworker, and certainly you can ask the coworker, hey would you mind sharing this with me. Then you have the minefield of coercion. Did the employee feel coerced to present this information to the employer? We're opening up can of worms after can of worms after can of worms when it comes to this kind of oversight.
First we need to figure out how did we become knowledgeable of this. If we became knowledgeable in a lawful manner, then the employer certainly can sit down and say okay, in this instance with Mr. Schilling, we saw that you said this and our concern is that it hurts our brand, it hurts our image, it hurts our reputation, it is certainly not something that we would want to be associated with ESPN, would you be willing to elaborate upon this and say something like, "this is of my own opinion, this is not reflective of my employer," or something along those lines, and make those suggestions. Again, navigating the minefield of coercion, because we're definitely within the realm of Mr. Schilling’s privacy and first amendment right.
In the case of the Facebook individual who was fired for the nasty Facebook posting, I would think that again, once you acknowledge the way in which you obtain this information, as long as you obtained it within the correct parameters, then I think that it is absolutely okay for an HR person to moderate a conversation between this employee and their supervisor, and get to the bottom line as to what provoked this posting for people to see. Let's rectify this situation and take those steps to move forward in a positive light, and certainly emphasize to the employee that this is very concerning, I wish you would've come to me first, we certainly don't want you to be in a situation where you feel this way, all the things that HR professionals are good at. Taking those steps.
What you're saying is that it's important for the HR professional not to take sides, and instead to be the mediator between both parties; to try to resolve the issue peaceably and make sure that it comes out without too much damage.
Exactly. The role of an HR professional in almost every circumstance is to be a neutral party, and have the best interests of their employer and their employees in mind, and working toward a positive outcome without coming across as favoring one side over the other or showing bias. That's what a true HR professional is good at doing, is being that neutral mediator, making sure both parties are communicating and coming toward a positive conclusion.
Remaining neutral, that's a really good segue into the next question. There's been a lot of back and forth on whether or not HR professionals should connect with coworkers on social media. What are your thoughts?
That is such a great topic. Again, it's a minefield. Again, I'm going to throw out the word favoritism. I think it's very easy while on the job to make friends with your coworkers, and I think it's very natural to receive those friend requests on Facebook, and I think most of us, without even thinking about it, hit "accept." What we're starting to notice as an outcome to these actions are that people are starting to feel those people who are friends with their HR representatives on Facebook, there could be an implied favoritism to those employees.
For example, if I have a manager who has two employees, one of which is Margaret and the second is Jennifer, and the HR professional is friends with Jennifer on Facebook but not Margaret. The manager has to think to themselves, if they were to come to the HR professional in regards to say, disciplinary action against Jennifer, and if they are knowledgeable that the HR representative and Jennifer are friends on Facebook, there could be an implied friendship there that may lead to favoritism or bias toward or against Jennifer based on the action that the manager wants to take, because they have a friendship outside of work.
Versus if two actions were taken against Margaret and Jennifer, and the action against Margaret was more severe than Jennifer, then could it be implied to Margaret that she got a more severe outcome because she's not friends with the HR representative, and Jennifer got the lesser outcome because perhaps she is friends outside of work with the HR professional? Again, we have this minefield that we need to navigate through. It's starting to become a trend of getting the word out there with HR professions that simply do not friend your coworkers on Facebook.
If an HR professional is friends with a manager on Facebook and a subordinate has a concern with that manager, do you think that they feel 100% confident they can go to that HR professional and file a complaint against that manager? They know that they're friends on Facebook, they have lunch together every Wednesday, all of these actions might be implying that this HR professional would favor that individual over the other. Now, we've lost the sense of neutrality.
So the solution is not to friend everybody, but instead to not friend anybody.
It's probably the best course of action, is not to friend coworkers on Facebook.
Now, the last thing that I want to talk about with you is LinkedIn recommendations with coworkers. Could you to talk about that?
Sure, I would love to. Some companies have policies in regards to references. Most policies are not inclusive of providing references through social media. For example, LinkedIn. What we're seeing is a lot of coworkers and employees at various levels in the workplace are asking each other, "Hey, will you write me a quick recommendation?" On the surface, it sounds very easy to do, it sounds like there would be no implications for doing so, I'm just going to write "Hey, you're a great person, you're somebody I can depend on, you did a great job on this project" and it sounds all great on the surface.
Let's say you are a manager and you have done one of these LinkedIn references to one of your subordinates, and then it turns out a couple of months down the road, you need to let that individual go for performance. What that individual has is a document that they can print with a date stamp, that basically says "a couple of months prior to getting let go from my employer, my manager wrote this glowing reference about me. I was never given the due process of going through progressive discipline, or coaching in regards to the reasons why I was let go. All I have is this piece of paper that says I'm a great employee." And two months later I get fired? That sounds like a wrongful termination case to me. That puts the employer in a terrible predicament, all because a seemingly harmless action of doing a reference comes back to bite them when they take an adverse action against an employee.
I would encourage HR professionals to coach their entire staff in regards to how they want to handle LinkedIn recommendations and possibly modify existing policies. If they have a no reference policy, then I would encourage them to think about adding social media platforms to that policy as well.
Do you have any advice for those that are writing this policy? Do you have any specific resources to look to, or things to make sure to include?
SHRM, the Society for Human Resource Management, has a robust website. It's simply SHRM.org, and you can search social media policies, and they have a lot of examples that they can use to help guide HR professionals in writing policies that make sense and help them navigate how they want to handle these issues in their workplace.
Check in next week for another interview with Lara on best practices for social media in recruitment! And make sure you share this with your HR manager and anyone else who can benefit from Lara's expertise.
Have a great week!