It’s been a crazy year so far for me, and it’s going to get even more crazy because I’m hitting the road this spring! I been invited to speak at three conferences and I have The Undeniable Tour.
I’m really excited to travel so much this year. I hope to use the time to meet incredible people, hopefully meet some of the people I greatly admire and follow online, connect with friends, see interesting places, and talk about some of my favorite topics – social media and social media law.
Plus I’m doing a handful of speaking events in the Phoenix area the spring too! I wish I didn’t have to sleep because there are so many things I want to do during my travels and so much I need to do to prepare for each one. I’m so excited to be invited to be involved in so many amazing conferences. And I’m so lucky that I get to take on a challenge as big as organizing my own speaking tour. (Sponsorship opportunities are still available!)
My plan is to blog, vlog, and post content on my various social media profiles during my travels. I want to share my adventures with you and do a lot of handstands. (It’s a gymnast thing.)
The only downside of all this traveling is I have to be away from my baby girl, not that she would enjoy planes, trains, unfamiliar hotels, or long hours in the car.
The National Labor Relations Board (NLRB) released an update last week with the latest developments in social media and employment. In a nutshell, this report says that you can say a lot online about your workplace and your employer and not get fired.
The law protects employees when they are engaged in a “protected concerted activity.” This includes discussions for mutual aid and protection about wages and work conditions with co-workers and third parties, statements where you are representing your coworkers or are outgrowths of previous employment discussions, and statements that are intended to induce group action. You can be pretty critical of your employer and/or coworkers without getting fired.
You can still get fired if your posts are defamatory, disparaging, or threatening or are simply gripes or rants.
The unexpected take-away from this report was how hard it is for employers to draft a social media policy that isn’t overly broad or doesn’t impede a protected concerted activity. You could tell that many of the employers in the report were thoughtful about their policy’s verbiage, and it was still found to be unlawful.
Based on the NLRB report, here’s what you can’t do with your company social media policy:
Restrict all public statements regarding the company,
Prohibit disparaging comments about the company on any media,
Prohibit employees from communicating with the media without prior authorization
Tell employees to avoid identifying themselves as the company’s employees or require approval to identify themselves as an employee,
Require all communications on social media sites to be honest, professional, and appropriate,
Prohibit “inappropriate conversations” and “disrespectful conduct,”
Prohibit engaging in unprofessional communication that could negatively impact the employer’s reputation,
Prohibit the disclosure of “confidential, sensitive, or non-public” information unless you provide examples,
Require employees to state on every post that they are stating their opinion and not the employer’s (but it’s ok to require this somewhere on their personal accounts), or
Require employees to bring “work-related concerns” to the company first.
The only policy described in the NLRB report that found to be lawful was narrow and specific. It prohibited “the use of social media to post or display comments about coworkers or supervisors or the Employer that are vulgar, obscene, threatening, intimidating, harassing, or a violation of the Employer’s workplace policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status, or characteristic.”
These policies are hard to write and a lawful one requires the employer to accept that they can’t control what their employees say outside of work and that, in a lot of cases, the employees can voice harsh judgment about the company without being at risk of getting fired as long as it’s a protected concerted activity.
It appears the term “flash mob” is being used inappropriately and its meaning is being overly broadened to include any group activity that is coordinated using social media. This year, there have been several robberies and assaults perpetrated by a group of people that appear (at least on the surface) to have been orchestrated via social media sites. The media has called them “flash mob crimes.” They make it sound like someone created a Facebook event that said, “Meet at Broadway and Main at 10pm. At exactly 10:03, we’re all going to run into the minimart, grab whatever we want, and run out.” That’s not a flash mob. That’s solicitation and possibly conspiracy. If the event actually occurs, it’s larceny and perhaps inciting a riot.
A flash mob is defined as “a group of people who assemble suddenly in a public place, perform an unusual and sometimes seemingly pointless act for a brief time, then disperse, often for the purposes of entertainment and/or satire.” Flash mobs have been occurring at least since the 1970’s. In recent years, they have been orchestrated via email and social media websites; however, that does not mean that every public group activity that is coordinated via social media is a flash mob.
Flash mobs are generally light-hearted innocuous fun. People who participate in flash mobs ride public transportation without their pants; they welcome back strangers at the airport; they have fake battles between heroes and villains; and they stand frozen in place for short periods of time. Some protests and promotional events are referred to as “flash mobs,” but technically they’re not. And any event that has a criminal intent is definitely not a flash mob.
I give the media some leeway when it comes to coining terms; however, I was deeply disturbed when I saw a legal website refer to flash mobs as including criminal behavior. It suggests the writer did not do their research on this topic.
I love flash mobs. I have been participating in them and organizing them since 2009. When Improv AZ organizes a flash mob, we do thorough research on the potential legal implications of our event. I have attended an event with pages of statutes in my back pocket to ensure that we’re acting within the confines of the law. We are diligent to inform our participants in advance of their do’s and don’ts. We may push the envelope, but we never intend to cross the line. Most of our encounters with police involve them smiling or laughing at us. At the 2010 No Pants Ride after party, a Tempe police car stopped near us and an officer yelled out, “We had a briefing about you!” And then he went about his merry way, knowing we were harmless. A bit odd and rather goofy, but harmless.
Flash mobs are harmless, playful, and unexpected events. They are not criminal acts by design. Flash mobs and crimes are two completely different phenomena. They do not exist on the same continuum.
In other news, the flash mob community needs to send a big “thank you” to Mayor Jackson and the city of Cleveland. Mayor Jackson recently vetoed a proposed law that would have made it illegal to use social media to coordinate a flash mob. Thank you for protecting our First Amendment rights!
Last weekend I attended a talk by Kade Dworkin to business students on social media strategies for companies. Kade seems to have read every book on this topic and knows the heavy hitters in this area. He suggested that every company have two social media policies.
Social Media Policy for Employees
Is an employee allowed to say who their employer is on their blog? What about their Twitter profile? Is there anything wrong with an employee tweeting out, “Grrr…some days I hate my job” or “My clients are making me crazy?” If there are no rules about what employees can and can’t say online when they’re on their own time, you really can’t get mad at them for what they say, unless there is a blatant violation of client confidentiality or a disclosure of a trade secret. It’s disturbing that only 29% of employers have social media policies. Being active on social media sites is part of doing business today, and if you don’t have a social media policy for employees, you’re asking for trouble.
Social Media Crisis Response Policy
I had never heard this before, but it makes perfect sense. In the past, a company had more time before a bad review is disseminated via newspapers and word of mouth. Now, a bad review can be spread across the internet in a matter of minutes. While a company should hope and work towards providing exceptional goods and services all the time, there will always be individuals who are not happy. When that happens, it’s critical that the company has a plan in place on how it will respond. The company should already have action plans for dealing with the worst case scenarios that might occur. Additionally, Kade suggested that whoever is in charge of social media should have a strong relationship with the company’s legal department to avoid any major missteps.
Recall the fiasco that occurred after Amy’s Baking Company got a bad review on Yelp. The main issue wasn’t that a customer was unhappy, but that the owner did a horrible job responding to the bad review. It’s hard for an owner to get a bad review about their staff and service, and it’s critical that the response be one that attempts to resolve the problem privately and show that the company is customer-focused. In this case, the owner’s response caused irreparable harm to their and their restaurant’s reputation. Many people who read the review and the owner’s response said that they will never patronize that restaurant in the future. I have never been to Amy’s and now given the choice, I’ll go somewhere else.
Kade also suggested that companies never let an intern be in charge of social media because it’s important that whoever is in charge is someone who can make decisions on the fly to resolve problems. This should occur within 30 minutes, not in a few days. A fast and effective response can do as much to bolster a company’s reputation as providing exceptional service.