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Tuesday, March 22, 2016

What is your social media policy?

Hiring and maintaining quality employees is a difficult process, in addition there is the challenge of keeping up with the ever-changing landscape of employment issues. The last few years employers have had to navigate through several major adjustments, some changes are ongoing. For example, the EEOC has published new guidelines on the use of criminal background checks. The “Ban the box” movement is rapidly spreading through State and local governments. If you are not familiar with the term “Ban the box”, it is the phrase used to describe the movement to have the question, “Have you ever been convicted of a crime”, removed from employment applications. (Have you ever been convicted of a crime? February 3, 2013) Maryland passed such a law, which took effect October 2013. In addition to rule changes, Federal authorities are monitoring employer’s actions for FCRA violations and National Labor Relations Act violations.
Researching social media

As technology changes it affects the way we do business. Not only in our daily commerce but also in the hiring process. Employees have always talked around the water cooler and outside of work in the privacy of their cliques, outside the earshot of company officials. With social media, employees have a broader base to which their complaints are heard and also are more open to discovery. Bosses are taking to the Internet to see what their employees are doing on social media. Human resource professionals are also using social media as part of their screening process. Hiring surveys have found that nearly 60% of interviewed HR professionals use social media as part of the applicant’s screening process. This is almost double the percentage from surveys conducted in 2012. In 2013, Federal labor bodies began hearing social media related cases and applying existing laws to the new medium for worker dissent-social media.
            The Internet has made it very easy to check on employees, but whether you are hiring or checking on an employee you may want to resist the urge. If you are researching job applicants and decide to do some Internet research, you may learn details about the applicant that you don’t know from the application, this could affect your hiring decision. If you learn something such as race, sexual orientation, illness, or pregnancy, and use that knowledge in your hiring decision, you may be in violation of the Civil Rights Act of 1964 and have trouble with the EEOC. 
            If you’re searching to see what employees are up to around the virtual water cooler and learn some disparaging information you may be enticed to act. Some employers have retaliated against employees for social media postings, which brought the cases before the National Labor Relations Board (NLRB). As the result, the NLRB has ruled, in most cases, for the employee.
Federal law

Title 7 of the Civil Rights Act of 1964 prohibits employers from refusing to hire any individual, or otherwise to discriminate against any individual, with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin
The National Labor Relations Act, Section 7 states, “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. Section 8(a)(1) forbids an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7”.
When using social media searches, employers can easily let information they learn infiltrate the decision process. Even if they claim they haven’t used information illegally, it would be difficult to prove otherwise.
            The NLRB ruled in 2013 that employees could use social media to…well…complain. As you read above, the NLRA protects employees’ rights to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. When an employee is complaining on social media about the boss, or conditions, or hours, they have that right. Additionally, the NLRB has ruled that employees can use confidential company information, company logos, or photographs of company property. The basis of the rulings are the employee’s Section 7 rights to act in concert and share company information regarding their working conditions in such ways as leaflets, picketing, etc. in an electronic medium.
One of the first rulings for employees came on April 27, 2013. The NLRB, Administrative Law judge, ruled in favor of three employees fired as the result of postings on Facebook about their employer and work conditions. The Board ruled that the employees were engaging in a protected concerted activity. As a result, the employer must offer full reinstatement to the fired employees, make the employees whole for any loss of earnings or benefits, and remove any mention of the firings from the employee’s records. Case 20-CA-035511, 359 NLRB No. 96
            In our blog post, Enforcing company policy May 8, 2015, a NLRB decision is highlighted in which a company claimed violation of obscenity rules as the reason for firing an employee for a Facebook rant.

Enacting policy

Companies have responded to the growing phenomenon that is social media by enacting policies that control what their employees can and/or cannot post. The NLRB has ruled that companies cannot have policies that restrict the use of social media by employees, nor can acts of retaliation be taken against employees as a result of social media postings. Furthermore, employers cannot ask employees for passwords or retaliate against employees for failure to provide passwords.
            Social media laws are also being enacted at the State level. In 2012, Maryland enacted the country’s first such law. The User Name and Password Privacy Protection and Exclusions law prohibits an employer from requesting or requiring an employee or applicant to disclose access information to their personal social media accounts.
So the question is- what is your social media policy? Is there one in place and does it address management’s use as well as workers? HR professionals can help draft your policy; always have any new policy or policy changes reviewed by an attorney.

Websites like Policy tool for Social Media can assist in drafting a policy. The site takes the user through a series of questions that results in a completed policy.

Thursday, March 10, 2016

Sue for a review?

Only in the last couple years have small business owners fully taken grasp of the power of Internet marketing. The first step was to jump on the web by building and publishing a site. Companies sat back and figured that would do it, we’re on the Internet. Then a company came along and, basically, took control of how people search for information and what the results of those searches would be (Google it). So now businesses had to ensure their websites could be found when potential customers entered popular search terms.

As commerce began interacting with the search engine gatekeepers, companies specializing in search engine optimization (SEO) figured out how to get websites on the first page of search results. Once that happened, companies began to compete for the slots on the first page. Search engine programmers were also watching and began ranking the companies in the search results based on the sites web activity, content, links, etc. The SEO companies figured this out and the dance began and continues. Part of the data collected that goes into search engine rankings are business reviews. In part, the number of reviews affects the search results so a push was made to increase those numbers. Potential customers began to actually read the reviews and make shopping decisions based on what others had experienced.

Encourage reviews

The next entrepreneurial Internet evolution was the development of review based business listings that helped people make shopping decisions based on what others were saying. Yelp is one of the most popular services for finding businesses on the fly. Users rely heavily on the reviews they read. So, businesses naturally seek to be reviewed which in turn provides a 1 to 5 star-based rating system. To please the review “powers to be”, businesses seek out and encourage reviews. Through Yelp, Google, Facebook, and myriad other search engines and business listing sites, a company can have many opportunities for customers to leave reviews. All of which are searchable by patrons and used to rank the business in search results.

This is all wonderful until a business gets a bad review that stinks. Like everything else on the web, once it’s out there, it’s out there. There’s an old saying that it takes ten atta boys to overcome one oh crap. Once a company gets a bad review the decision has to be made to respond or not, or try and bury it with good reviews. Even if the company corrects the issue offline the bad review is still out there.

To encourage reviews companies, will provide on-site access so that customers can leave comments immediately. Some offer coupons, discounts, and other enticements to get customers to leave a review. Some, however, have attacked the problem from the other end. Not so much discouraging bad reviews, but attempting to take the ability away from customers.

Companies have begun putting non-disparagement clauses into contracts. A non-disparagement clause restricts individuals from taking any action that negatively impacts an organization, its reputation, products, services, management or employees. In Texas, a pet sitting company is currently suing a couple for posting a negative review on Yelp. The plaintiff is seeking more than $6,700 in damages, alleging the client violated a non-disparagement clause in the signed contract when the couple posted the bad review. It will be interesting to see how this plays out.

Get out the vote

People don’t picket outside your place of business trying to warn others of the terrible service they received. No. They get on the anonymous Internet and express themselves. So how to deal with bad reviews? Ecommerce has changed the way a company markets themselves. A company has to encourage reviews. Help make it easy for customers to find the place to write reviews. As they say in election years-Get out the vote!  You want to rack up as many atta boys as you can and keep the trend going. Circumvent bad online reviews by addressing issues as they arise. If left to fester you can bet you’ll be reading it online.

If a bad review pops up, acknowledge it. Don’t be argumentative.  Apologize and make it right. Explain to other readers in the response what was done to correct the issue. The same goes for good reviews. Acknowledge and thank the writer. Either way, show you care about their business. Of course, if your bad reviews outweigh your good reviews maybe there are other issues you need to address.

Depending on your customer base, getting them to write reviews can be like getting blood from a stone. Make sure they know reviews are welcomed and how they can do it. Follow up. People will say they will write a review but once they leave your business it never happens. Provide good service and the good reviews will come.