Dangers of Social-Media Discipline

judge's gaveEmployers should be concerned by the National Labor Relations Board’s latest decision pertaining to social media and work. If not concerned, then taking very special note of, at the very least.

This ruling, as detailed thoroughly in this posting from Littler Publications, centers around employees’ off-duty social-media posts about work, and what employers can and can’t mandate about that.

In the ruling, as the posting puts it, the board came down hard on the employer — Triple Play (a.k.a., Triple D) Sports Bar and Grille in Watertown, Conn. — in that it “set a high bar for employers before they can terminate employees based on speech otherwise protected by Section 7 [of the National Labor Relations Act], determined that [a Facebook] ‘Like’ in that case was protected, reversed the employee’s firing and found a key provision in the employer’s social-media policy to be unlawfully overbroad.” I’d say that’s coming down hard.

The case has to do with several employees who were complaining in a Facebook discussion about a mistake they suspected the bar’s owners of making when calculating their state tax withholding. Some in the discussion were simply following the lines of the conversation. Here is Littler’s rendition of what transpired:

The owners organized a staff meeting with the payroll provider to discuss the issue. Before this meeting, Jamie LaFrance, a former employee who had recently left [her job] started a Facebook conversation by posting the following status update:

“Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!”

Several comments followed in which a customer and a current employee sympathized.

LaFrance continued by accusing the owners of making a mistake in calculating tax withholdings, and she expressed her intention to report the mistake to the state’s “labor board.” At that point, a current employee, Vincent Spinella, selected the “Like” option under LaFrance’s initial status update.

As the Facebook exchange continued, LaFrance verbally attacked one of the owners:

“Hahahaha he’s such a shady little man. He prolly [sic] pocketed it all from all our paychecks.”

Another current employee, Jillian Sanzone, followed this statement by posting: “I owe too. Such an asshole.”  More comments followed, including a statement by another current employee that she planned to discuss the tax issue at a staff meeting.

After learning about the Facebook exchange from one of LaFrance’s Facebook friends, a current employee who happened to be the sister of one of the owners, the owners questioned Spinella about his “Like.”  They told Spinella that it was “apparent” he wanted to work somewhere else because he had “liked the disparaging and defamatory comments” and terminated his employment.

Spinella accused Triple D of illegal actions under the NLRA and the case came before the NLRB. Triple D argued that the disparaging comments and Spinella’s “Like” took the case outside the realm of the NLRA’s Section 7 protection as a concerted activity. The board, however, ruled otherwise because: Spinella did not specifically “like” any of LaFrance’s allegedly defamatory comments in and of themselves, the comments weren’t intended for public consumption on a private Facebook page and no one mentioned anything disparaging about the employer, per se, but related everything to an ongoing labor — i.e., tax withholding — dispute.

The NLRB also ruled this portion of Triple D’s social-media policy was too broad:

“[W]hen Internet blogging, chat room discussions … or other forms of communication extend to employees … engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment.  … In the event state or federal law precludes this policy, then it is of no force or effect.”

So what should you be concerned about exactly? Littler attorneys Philip Gordon and Zoe Argento offer these six takeaways in their post:

  1. Because a “Like” standing alone can be protected, employers should consider consulting with counsel before disciplining employees based on their selection of the “Like” button.
  2. When analyzing whether a “Like” is protected speech, employers should refer to the specific post or comment to which the “Like” relates.
  3. When analyzing whether otherwise protected social-media posts have crossed the line and lost their protection, the NLRB will apply different standards to disparagement of the employer’s products and services and defamation of the employer or members of its workforce.
  4. The actual malice standard applicable to defamatory statements imposes a heavy burden on the employer to prove that the employee posted content knowing it was false or it was made with reckless disregard for the truth.
  5. Employers should consult with counsel before firing an employee for allegedly defamatory or disparaging speech when that speech takes place in the context of a group discussion in social media.
  6. The NLRB continues to closely scrutinize social-media policies. Employers should recognize that language which is general or establishes subjective standards, such as “inappropriate discussion,” will raise a red flag for the board unless accompanied by examples that make it clear to a reasonable employee that the general language is not intended to encompass protected speech.  Relatedly, employers should expect the board to closely scrutinize any disclaimer before relying on it to “save” policy language from invalidation.  Such disclaimers have not been very helpful overall in terms of avoiding NLRB problems.

For your additional reading pleasure, and pointers, here are numerous blog posts we’ve written about social media in the workplace and social-media policies employers are drafting, should be drafting and shouldn’t be drafting in their attempts to control its impact.

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Drug Testing Index Reverses Direction

Most employers may have zero tolerance when it comes to drugs in the workplace, but if we’re to believe the latest data from Quest Diagnostics in Madison, N.J., fewer job candidates and workers are taking such policies to heart these days.

200273910-001For the first time in more than a decade, the percentage of positive drug tests among American workers in Quest Diagnostics’ Drug Testing Index increased, climbing to 3.7 percent in 2013 from 3.5 percent in 2012 (based on 7.6 million urine drug tests), according to Quest. The increase was fueled primarily by a rise in positive tests for marijuana and amphetamines.

As you might expect, the two states that have passed recreational-use marijuana laws—Colorado and Washington—experienced the greatest jump in marijuana-positivity rates, climbing 20 percent and 23 percent between 2012 and 2013, respectively. For the general workforce in all 50 states, the increase averaged 5 percent.

But it should also be noted that those two states experienced dramatic increases in marijuana-positivity rates prior to legalization at the end of 2012. From 2009 to 2010, Colorado experienced a 22-percent increase and Washington a 10-percent decline in positivity. From 2011 to 2012, Colorado experienced a 3-percent increase and Washington an 8-percent increase in positivity.

Barry Sample, director of science and technology for Quest Diagnostics Employer Solutions, says he’s not sure why the steep increases and declines in those two states preceded the legalization of marijuana. “It is possible that relaxed societal views of marijuana use in those two states, relative to others, may, in part, be responsible for the recent increase in positivity rates,” he says. “Yet this doesn’t explain why both states also experienced steep rises—and declines—in positivity in recent years.”

In light of these findings, Quest says it will be paying close attention to how the data evolves over the next year or two.

But what “we do know,” he adds, “is that workforce positivity for marijuana is definitely on the rise across the United States.”

In addition to these findings, Quest reports that use of amphetamines showed an increase across all three specimen types and oxycodone positivity declined 8.3 percent between 2013 and 2012 and 12.7 percent between 2012 and 2011 in the combined U.S. workforce. (In fact, four states actually experienced double-digit declines in oxycodone-positivity rates in both 2013 and 2012: Florida, Massachusetts, New Jersey and Ohio.)

Of course, the rise in positivity rates could be aberration. After all, it’s just one year — and hardly the kind of move employers need to get worked up about. But that said, it’s still something they’re probably going to want to keep a close eye on, especially if more states decide to follow in the footsteps of Colorado and Washington and pass laws legalizing the recreational use of marijuana.

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Employees: Pay Matters Most

payWe routinely feature, in our print edition and on our website, stories about the vital role played by leadership training, wellness programs, communication strategies and even office design in creating and sustaining employee engagement. But it shouldn’t obscure the fact that, for most employees, the bottom line is the bottom line — when it comes to engagement, pay is the most important factor.

The new Workforce 2020 survey, which queried more than 5,400 employees and executives in 27 countries and was conducted by Oxford Economics with the support of SAP, is the latest report to confirm this. The survey finds that two-thirds of the respondents cite competitive compensation as the most important attribute of a job. And it’s cross-generational: millennials and non-millennials alike cite comp as the most-important benefit, while 41 percent of millennials and 38 percent of non-millennials say higher compensation would increase their loyalty and engagement with the company.

This isn’t to undermine the importance of things like manager training and corporate culture: Studies have repeatedly shown that while competitive pay and benefits can lure employees to companies, having a positive work environment and a good boss play crucial roles in keeping them there. But if they feel under-compensated for the value they provide, it’s only a matter of time before greener pastures — or at least, the appearance of greener pastures — lure them elsewhere.

Do companies get this? The trucking industry doesn’t appear to. According to HREOnline columnist and Wharton School Professor Peter Cappelli, real wages for truck drivers apparently have fallen by almost 10 percent during the last 10 years — and even a critical shortage of truck drivers so severe that some trucking companies are unable to accommodate their customers’ needs hasn’t led to an increase in wages. Companies cite customers’ unwillingness to pay higher fees as a reason for not raising wages, Cappelli writes — and yet, trucking firms are perfectly willing to pass along higher fuel costs to their customers, he adds.

Cappelli ends his column on this provocative note: The trucking industry will either have to raise wages to attract the drivers it needs, or “we start hearing that we need to import more foreign drivers because ‘no Americans want to drive trucks.’ “

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You Can Keep the Corner Office

AA049404HR leaders are always on the lookout for the organization’s next generation of leaders. A new survey, however, finds the majority of workers aren’t particularly interested in ever taking the reins.

A recent poll of 3,625 workers age 18 and up, conducted by Harris on behalf of CareerBuilder, found just one-third (34 percent) of these employees aspire to leadership positions. Just 7 percent indicated an interest in shooting for senior- or C-level management.

Why are these workers indifferent toward reaching the top levels of the organization? Most (52 percent) said they are simply satisfied in their current positions. Another 34 percent of this group indicated they don’t want to sacrifice work/life balance at the expense of advancement, while 17 percent said they don’t have the necessary education.

The survey did find the desire for leadership roles to be greater among men than women, by an 11 percent margin (40 percent versus 29 percent). At 44 percent and 39 percent, respectively, African-Americans and LGBT workers were more likely to take aim at leadership positions than the national average. Thirty-two percent of workers with disabilities reported similar aspirations, as did 35 percent of Hispanics.

The poll also addressed the glass-ceiling issue, asking respondents to what extent they felt firms held female and minorities back in their career pursuits. Overall, 20 percent of those surveyed said they feel his or her organization has a glass ceiling preventing women and minorities from reaching higher job levels. Just 9 percent of non-diverse males said they think a glass ceiling is in place at their companies.

These figures spiked, however, among those with designs on management and senior management positions. For example, 33 percent of females in this category felt such barriers existed, while 34 percent of Hispanics, 50 percent of African-Americans and 59 percent of workers with disabilities said the same. Twenty-one percent of LGBT workers seeking leadership roles indicated as much, slightly less than the national average.

While it seems many employees are content to forego the executive career track, “it is important … to promote a culture of meritocracy in which all workers, regardless of gender, race or sexual orientation, are able to reach senior-level roles based on their skills and past contributions alone,” said Rosemary Haefner, vice president of human resources at CareerBuilder, in a statement. “The survey found that employees at companies that have initiatives to support aspiring female and minority leaders are far less likely to say a glass ceiling holds individuals back.”

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Exec Hiring Market Heating Up

Heading into 2015, almost two-thirds of employers are selectively or significantly increasing executive hiring levels, and a similar percentage of employed executives are now open to or actively pursuing new opportunities, according to a newly released survey focused solely on the executive market.

The results of the Greenwich, Conn.-based Claymore Group’s Labor Day 2014 Executive Talent Market survey were culled from the responses of 407 executives.

The executive respondents indicated that the industries they work in that are planning to hire the most in 2015 are:

* Consulting/Professional services,

* Healthcare/Pharm,

* Health insurance, and

* Wealth management.

Executives responding to the survey also indicated that the strongest functional areas demonstrating growth in executive hiring for 2015 are in are in sales, consulting/professional services, product management, risk management/compliance, and IT.

About two thirds of currently employed executives are now open to or actively exploring new opportunities. The best sources for executive employment were indicated to be Networking/Referrals and LinkedIn by both employed and unemployed executives. Facebook and job boards were viewed as the worst sources with internal, retained and contingency recruiters being viewed as good sources.

HR executives increasingly need to recognize the growth in executive hiring and demand by responding more rapidly in making offers as well as in making more competitive offers to attract the top executive talent as they are clearly more in demand, says Managing Director Steven Landberg.

“They also need to recognize a growing need to seek to retain their top executive talent as they will certainly be increasingly sought after by others in the talent market.”

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Could Gen Zers Help Solve STEM Skills Gap?

461252089 -- young scientistMore good news for employers when it comes to Gen Zers, the next generation — those now in high school and college — soon to enter the workforce en masse.

This just-released report from Chicago-based CareerBuilder says high-school seniors’ future career plans could very well clean up — or at least help bridge — that highly troublesome science, technology, engineering and math skills gap said to be barreling down the tracks.

According to the report, new research conducted by Harris Poll on behalf of CareerBuilder and its subsidiary, Moscow, Idaho-based Economic Modeling Specialists International, shows nearly three in four of 209 high-school seniors polled already know what career they want to pursue, and STEM-related fields top their choices. (The survey queried 2,188 hiring and human resource managers, ages 18 and over, as well.)

The poll also finds the majority (97 percent) of high-school seniors plan to go to college to obtain a two-year or four-year degree or other training that may ultimately help close the talent gap. The most popular majors? You got it, mostly STEM-related. Here they are:

  1. Engineering
  2. Business
  3. Psychology
  4. Biological and Biomedical Sciences
  5. Physical Sciences
  6. Arts, Visual and Performing
  7. Computer and Information Sciences
  8. Health Professions and Related Clinical Sciences
  9. English Language and Literature
  10. Math and Statistics

And here are the most popular choices for profession among the 73 percent of high-school seniors who know what they want to pursue (again, STEM-heavy):

  • Teacher
  • Engineer
  • Psychologist/Psychiatrist
  • Scientist – Biological/Physical/Social
  • Artist/Designer
  • Veterinarian
  • Machine Operator
  • Computer Programmer
  • Physician
  • Government Professional
  • Nurse

This seems to work quite nicely alongside a news analysis I posted on HREOnline on Tuesday, the same day the first truly definitive study on Gen Zers was released by Millennial Branding, based in New York, and Randstad, with U.S. headquarters in Atlanta.

That study, Gen Y and Gen Z Workplace Expectations, shows Gen Zers are more rooted in prudent and pragmatic notions about how work gets done and what is needed to succeed than their Gen Y predecessors (ages 21 to 32).

“Gen Zers … appear to be more realistic instead of optimistic, are likely to be more career-minded, and can quickly adapt to new technology to work more effectively,” Dan Schawbel, founder of Millennial Branding and author of Promote Yourself, told me for that piece.

They’ve also seen how much their parents and Gen Yers have struggled in the recession, he said, so “they come to the workplace well-prepared, less entitled and more equipped to succeed.”

Basically, Schawbel told me, they’re willing to work harder toward goals and have fewer illusions about what it takes to achieve them.

As the daughter, granddaughter and mother of scientists and engineers, I’ve lived through the hard work, stamina and — yes — realism involved in and needed for such pursuits.

So I have to say, I foresee only good things when you put these two reports together.

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A Few Industries Retaining DB Plans

retirementA new analysis by Towers Watson finds that although the number of Fortune 500 companies that continue to offer defined-benefit pension plans to new hires has plummeted during the last 15 years (from 299 companies to 118 at the close of 2013), the number that shifted away from DB plans last year is the lowest number in more than 10 years. The analysis also found that nearly half of the Fortune 500 that no longer provide DB benefits to new hires  still have active employees who continue to accrue benefits.

The analysis also found that the insurance and utilities industries are bucking the trend of shifting from DB plans to defined-contribution plans: More than half the companies in these sectors still offer DB and DC plans to new salaried employees. Among insurance companies, 66 percent offer a pension and DC plan to new hires, while 59 percent of utilities do. Utilities tend to have more long-term career workers than other industries, according to Towers Watson, while the insurance industry includes many employees who “may be more inclined to understand and appreciate DB plans than workers in other sectors.”

Among the Fortune 500 that continue to offer pensions to new hires, only 34 offer a traditional pension, while 84 provide a hybrid, or cash-balance, plan. More than half (57 percent) of employers that established a hybrid plan either before or after 1998 still offered a hybrid plan to new hires in 2013, the analysis found.

Cash balance plans have had a rocky history, particularly when large companies such as IBM turned to them to replace their traditional DB plans a decade or so ago. Since then, however, greater regulatory clarity on the use of such plans appears to have made them more acceptable, particularly among small employers.

 

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What Happens When Executives Leave

executive exitThat’s what a pair of University of Kansas School of Business professors wanted to find out when they undertook a recent study on turnover at the highest levels of management.

James Guthrie and Jay Lee, professors of human resource management at the school, sought to see how companies perform following the exit of top executives, using data from 367 firms representing 134 industries. According to a UK statement, the researchers’ analyses “examined the relationship between top management team turnover and firm performance, taking into account a number of industry and firm characteristics, including a company’s own performance history.”

Guthrie and Lee found that, “as rates of top management turnover increase, firm performance tends to suffer.”

This may seem intuitive enough, but the researchers maintain that companies can sometimes be too “trigger-happy” in removing corporate leaders, and actually overestimate the positive effects of turnover at the top.

“There is this idea out there that top management teams get too complacent, too committed to the status quo, and therefore shaking things up will improve performance,” according to Guthrie. “And there is a certain extent to which that is true.”

But what firms don’t always count on losing in the process, he adds, is the departing executive’s tacit knowledge—social connections, industry relationships or organizational knowledge, for example.

The implication, says Guthrie, “is that turnover not only erodes performance by depleting organizational skill banks but, perhaps more dramatically, by altering the social structure and fabric of an organization.”

While acknowledging that change at the top is necessary when an executive isn’t performing well enough, “I think a lot of firms take this too far,” he continues, noting that companies can tend to overlook executives’ firm-specific experience and fall into a mindset that change is always a good thing.

Ultimately, Guthrie and Lee concluded that the effects of turnover at the highest levels of management are comparable to those found in studies of turnover at the lower levels of the organization—increased turnover equates to decreased productivity and insecurity in other parts of the firm.

“It’s basically a cautionary tale,” says Guthrie. “Don’t necessarily think that if you’re in a volatile industry, changing people at the top will improve things.”

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Hiring Slows Despite Economic Revival

The Wall Streets Journal recently published a story about how employers are still dragging their collective feet when it comes to hiring, even though the economy seems to have fully recovered from the recession.

According to the piece, employers are taking an average of  25 working days to fill vacant positions, based on information Dice-DHF Vacancy Duration Measure which, the paper reports, is an index created by University of Chicago economist Steven Davis.

And, according to Davis’ figures, larger companies (those with at least 5,000 employees) take even longer to fill vacant positions: 58.1 days.

The story goes on to lay out a few possible reasons why hiring is taking so long, among them:

On one hand, companies are feeling sunny enough to post jobs—openings reached 4.7 million in June, the highest number since 2001—but, fearful the economy could falter, they are finding it hard to commit to hires.

Another reason:

Thinner staffing in HR and recruiting departments may be another factor, since recruiters are taking on a larger workload as employers post jobs. “Depending on how many hiring managers [company recruiters are] dealing with, it’s impossible” to fill jobs quickly, says Mark Mehler, co-founder of staffing strategy consulting firm CareerXroads.

Meanwhile, when HRE Staff Writer Mark McGraw reported on the phenomenon back in March, Glassdoor reported the average time-to-fill a vacant position in 2013 was 23 days.

Typically, this latest WSJ story says, a longer time between employers advertising a job and having an offer accepted is a sign of a thriving economy, suggesting there are more openings than job seekers to fill them.

“But with nearly 10 million Americans currently unemployed, that doesn’t describe today’s labor market,” the story notes.

“Slow” would likely be a better way to describe it.

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Christmas Gifts for 1 Million: Jobs

There’s a movement afoot to put a million people to work by Christmas that does seem a bit outside your standard hiring 482134293 -- job seekingapproaches. First off, understand, this is not a company looking for employees. Nor is it a mere job fair. This is a relatively new organization known as Apploi, a jobs app and ecosystem that’s been traveling the country and hosting events aimed at helping job seekers find work.

It’s last week-long event in the Chicago area culminated this past Thursday, Aug. 28, in a final event at the city’s House of Blues. The event featured an information and training session, networking opportunities and meetings with hiring managers. That event capped off a week in which job seekers, using the app, were able to apply to jobs with a number of big companies in the region, including UNIQLO, Best Buy, Cinnabon, Piercing Pagoda and Forever 21.

Working under the banner and social hashtag #Million4Christmas, Apploi’s goal, according to its release is “to increase access to jobs for people across the United States and even beyond, while providing training and career advice to those looking for jobs in retail, service and support.”

Here is a video from an ABC News special in December of last year explaining how the app works. As its release states, it “transforms the initial point of capture for job seekers, allowing companies to see personality and soft skills up front, through video and audio questions; hire talent quickly, both through filters and screening tools and instant communication; [and] also provides greater access to people who previously couldn’t apply, due to lack of Internet, or who didn’t know about opportunities.”

Its public kiosks, it says, are available at companies, as well as job centers, community centers and colleges, workforce centers, and libraries in cities and towns throughout the country.

Exactly how this plays out and how the jobs are to be tallied and verified remains to be seen. As Apploi CEO Adam Lewis says, “helping 1 million job seekers find work by Christmas is, by no means, an easy task.”

On first impression, though, the effort seems to be one that can only help all involved, employers included.

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