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HR Leadership Column

Technological Revolution

The ease of using social-media tools, combined with recent indications that the Democratic-controlled National Labor Relations Board will be examining acceptable uses of technology by employees -- and not just union employees -- means that HR leaders should be taking a hard look at the issue as well.

Monday, January 24, 2011
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Earlier this month, the world watched as the citizens of Tunisia erupted in protest over an iron-fisted ruler who had held power for more than two decades.

Coverage of the protests, which had been going on for weeks, didn't appear much in the Western news media until protesters using blogs, Facebook, Twitter, WikiLeaks documents, YouTube and other forms of digital media mobilized and reported on events in that country.

While social media surely didn't cause the citizens' revolt -- two decades of an autocratic ruler did that -- social media's role as a rapid and powerful communication tool was certainly on display. Citizen protesters were able to use the technology to publicize their grievances and share information with the world in real time.

Why should HR executives take note of the events in Tunisia?

Well, what if we weren't talking about Tunisia, but about a company with some disgruntled employees, unhappy with their treatment by management?

Employees have access to the same technology and social-media tools used by protesters in Tunisia. They could use the tools -- and have used the tools -- to protest treatment by their employers and to rally others to join their protest.

And recent steps by the National Labor Relations Board suggest that employees who make use of digital tools to engage in concerted activity over terms and conditions of employment will be gaining greater protections under the National Labor Relations Act.

HR professionals who have operated in a union environment are very familiar with what constitutes "concerted activity" under the NLRA. But in a workforce where fewer than 8 percent of private-sector workers are unionized, too few HR executives have paid attention.

They're under the mistaken belief that there has to be a union involved for the law to apply. They don't realize that the NLRA protects employees even when there's no union involved; it just requires two or more employees taking some action to improve their working conditions.

That lack of knowledge is likely to change as the NLRB continues to adopt policies that recognize and embrace new technology and social-media tools.

 

First, in November, the NLRB charged an employer with illegally firing a worker who posted derogatory comments about the company and her supervisor on her Facebook page. Although the company's policy stated that:

"Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the Company or the employee's superiors, co-workers and/or competitors,"

the NLRB said in its press release that this policy was "overly broad" and constituted "interference with employees in the exercise of their right to engage in protected concerted activity." (The HREOnlineTM story about the case is here.)

Hal Coxson, with the labor law firm Ogletree Deakins, describes the ruling as the NLRB saying there is "no difference between something posted on Facebook and something said at the break room or water cooler."

Thus, employees may have rights of free expression on Facebook.

Second, in November, the NLRB signaled another possible change in policy, asking for public input (PDF) on a company's right to limit a union's handbilling in front of its stores.

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This opens up the question of whether the NLRB will change the standard about access to physical property, as the Board has asked for input on "What bearing, if any, does Register Guard have on the Board's standard for finding unlawful discrimination in nonemployee access cases?"

Since Register Guard articulated limits on employee use of an employer's e-mail system to solicit support for a union, this invitation for input signals that the standard may be loosened in the future -- meaning that employees may have greater rights to use a company's e-mail for concerted activity.

Finally, in December, the NLRB issued a proposal requiring all employers to post a notice informing employees of their rights under the NLRA. Such notice is currently required to be posted by federal contractors, but this proposal, if enacted, would require all other employers -- union and nonunion -- to post the notice.

Posters would have to be placed where other workplace notices are typically posted. However, if an employer communicates with employees primarily by e-mail or other electronic means -- which many now do -- the notice would have to be posted electronically as well, either through e-mail or on a corporate intranet.

The message from these recent NRLB policy shifts for HR professionals should be clear.

Just as the NLRB addresses the use of technology and social media by employees as tools for concerted activity, HR executives need to be prepared to make some changes.

While social-media tools are unlikely to lead to a revolution in your workplace, they may very well revolutionize how you lead and manage your social-media policy.

Susan R. Meisinger, former president and CEO of the Society for Human Resource Management, is an author, speaker and consultant on human resource management. She is on the board of directors of the National Academy of Human Resources.

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