Why Everyone in HR Needs to Know About "Protected Concerted Activity"

There are many HR people who are unfamiliar with labor law, especially here in the Southeast. But recent events dealing with the National Labor Relations Board (NLRB) make it clear that everyone in HR, and management for that matter, needs to know something about it. The Democrat controlled (read Labor controlled) NLRB is in a made rush toward the end of the year to make as many decisions as possible why Craig Becker is still in place. (His recess appointment on the board ends with the new Congress).

One broadly ballyhooed activity of the NLRB was its investigation regarding Facebook postings as a "protected concerted activity." But more about that in a minute. First, to understand their statements you must know what "protected concerted activity" is and how it impacts a company. Directly from the NLRB website comes this definition.

The National Labor Relations Act (NLRA) protects employees’ rights to engage in protected concerted activities with or without a union, which are usually group activities (2 or more employees acting together) attempting to improve working conditions, such as wages and benefits. Some examples of such activities include:

a) 2 or more employees addressing their employer about improving their working conditions and pay;
b) 1 employee speaking to his/her employer on behalf of him/herself and one or more co-workers about improving workplace conditions;
c) 2 or more employees discussing pay or other work-related issues with each other.

The NLRA also protects any individual employee’s right to engage in union support, membership, and activities.
The NLRA protects an individual employee’s right not to engage in union activities or in other protected, concerted activities.

You will notice the sections I highlighted. "Protected concerted activity" is not restricted to companies which are already populated with unions. In fact, employers violating these rights often prompt employees to seek union support. This law is also why it is illegal for companies to have policies that forbid employees from discussing their pay with other employees. Such a policy can be construed as prohibiting employees from discussing pay or other work-related issues with each other, a direct violation of the NLRA.

Now back to the Facebook blowup. This deals with the actions of a Connecticut company in dealing with a worker in a disciplinary situation. She was already a union member and in this disciplinary situation, or at least one she perceived as disciplinary, she requested union representation. She was denied that representation (probably not a good thing because of the Weingarten rule.) Later that day she went home, and from her home computer, posted disparaging remarks about the supervisor on her Facebook page. Other employees, who were Facebook "friends", added to the remarks and supported her on her page. Two weeks later she was fired for violating the company's Blogging policy. A complaint was filled and the NLRB investigated. The result of their investigation was stated as:

"the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity."

As blogger/attorney Daniel Schwartz, at Connecticut Employment Law Blog states, "Employers are increasingly looking at and monitoring social media usage. The NLRB's complaint makes it clear that it intends to challenge employers who over-reach." He indicates that a hearing for the case is scheduled on January 25, 2011.

So what is the upshot of this? First you need to make sure your policy is not one of those overreaching policies. As one union blog stated "This is a big step forward for workers, who don’t necessarily have to fear being fired for discussing their work on Facebook with coworkers on their own time. But the key phrase here is “with coworkers” – there may be a danger of an employer taking disciplinary action if an employee takes to Facebook about their work, but doesn’t involve coworkers in the discussion." You need to make sure your policy does not step on an employee's right to engage in protected concerted activity.

Secondly, be very careful before taking action against an employee for Facebook, or any other social media site, activity. Make sure you understand the players and the issues involved. INVESTIGATE before you REACT.

Third, train your supervisors and and managers on this. 

As a last note, I did read that the supervisor was still free to sue the employee for defamation of character. We will see.

These Will Make You Go "Hmm": Great HR Posts

There is a ton of stuff in the blogsphere to read. There is NO way you can keep up on it all and get your job done. So that is why I try to help and pass on to you some great things I read. Here is a list of posts that will make you think. And who knows you may learn something in the process.

• First up is The Employee With The Achilles Heel written by Kimberly D. Urban at her blog site Kim's HR Potpourri. This post is one that all of us can identify with. My story was similar to hers. Great employee who could not make it to work.
• Next up is What If We Kill Incentives? Laura Schroeder, writing at the Compensation Cafe, discusses what has to be in place if we take away monetary incentives. Her real-life example comes from time spent in Russia.
• Some of you have probably seen the NLRB activity on employee Facebook activity. I have even considered writing on it myself. I may no after having seen Jon Hyman's post WIRTW #152. It is his usual collection of excellent articles, but the first group focuses on Facebook Firing. So if  you want to be caught up on this controversy read this series. It DOES HAVE AN IMPACT ON YOU! Ignore it to your own peril.
• Another selection from the Compensation Cafe is on The Importance of "Why" written by Derek Irvine. Derek talks about the importance of meaning and purpose on the job.
• Lastly, there is the entire series of posts offering strategic advice to SHRM and how things can be improved for the association and the profession. This is found at Voice of HR. My reaction to most of these posts has been "Damn, I wish I had written that!" (I did write a post as well, though it has not yet been published. But it will pale in comparison to most of these.)

So there is your list of thought provoking, stimulating stuff to read today or this weekend. I will defy you to tell me these did not make you go "HMMM".

Back to the Future Part II

You got lucky! Yesterday I presented 5 trends from 2002 and commented on them in 2008. I said I would present another 5 today. Well I miss counted. There were only 8 to begin with so you will only have to look at 3 today. Here we go.

Trend #6 (from HRNext's 2002 trend projection)
Acquisitions and mergers. Many companies are merging as the sluggish economy lingers, and affected HR managers will need to figure out how to merge payroll, handbooks, policies and cultures. It's important to keep key talent during mergers, so affected HR managers will play a strategic role in the process.

This is as important today as it was in 2002. The key point to this is that HR needs to be involved in this FROM THE BEGINNING. These mergers and acquisitions are being made from a financial perspective and then HR is dragged in to help straighten out the mess of the people side. It would help if HR was involved from the get-go. Perhaps some of the issues could be avoided. Mergers to watch: Delta and Northwest, banks, and now GM and Chrysler.

Trend #7
The aging workforce. As the 'Boomers' get gray, more and more of the workforce will continue to go the same way. Furthermore, better health care is extending lives and many feel up to working well into their sixties and seventies. Still others have to keep working because they failed to save enough for retirement, or saw retirement assets shrink in the stock market. HR managers will need to be wary of issues related to recruiting, hiring and employing older workers without discriminating against them, or appearing to.

Well the 'Boomers' have not gotten any younger in the last 6 years, so all those issues of dealing with older workers still exist. Additionally, in the past six years, we have had an influx of Gen Y'ers. This age diversity in the workplace has presented HR and management a challenge and will continue to do so. Relationships, promotional tracks, reward systems and more will be challenged by this age diversity.

Trend #8
Technology. HR Departments will make better use of the Internet and intranets, to store, organize and disseminate information to employees as well as implement self-service technology to reduce HR costs. The Web will continue to become an important tool for HR Departments, but one that can be difficult to implement.

Use of the Internet and technology has increased tremendously. One of the major shifts has been in the importance of social networking sites. They are no longer just the domain of teenagers. Facebook, LinkedIn and others are now becoming sources and resources for HR departments in looking for and keeping track of employees. The use of these sites for recruitment and background checks has caused some issues of a legal natures. For example, does checking out a Facebook page or doing a Google search as a reference check violate the Fair Credit Reporting Act. It also causes some potential performance issues. Does your employee being connected to others on Twitter help productivity or hinder productivity? How does the manager control this? And lastly blogging has caused a number of problems in productivity and company secrecy. So Web 2.0 is a double edged sword that HR has to get a handle on before it gets out of control.

If you are in HR and these terms are unfamiliar to you then you need a lot of education. Even those of you familiar with them need to think of the ramifications of Web 2.0 in your workplace.