One of the great challenges for employers is to draft and
to enforce policies dealing with communications and social media which actually
achieve the desired result. The tension between enforcing a mother's admonition
of not saying anything if there is nothing nice to say with the NLRB's broad
interpretation of concerted, protected activity where you can say something that
is not necessarily nice makes creating such a policy extremely challenging. Perhaps
the leading example, at least of a policy "approved" by the Division
of Advice is Boeing's code of
conduct. A portion of the code states, "Employees will not engage
in conduct or activity that may raise questions as to the company's honesty,
impartiality, reputation or otherwise cause embarrassment to the
What happens when the "boss" engages in conduct that for an
employee would be unprotected and a violation of the applicable policy?
There have two recent incidents which highlight the problem. The
first incident involved
the statements of the president of a major university concerning the conduct of
Catholic priests. The statement was to the effect that while the priests are
holy on Sunday, they are holy hell the rest of the week, and one cannot trust
the "damn" Catholics on Thursday and Friday. Statements were also
made about other athletic conferences and the lack of quality educational
standards at another university. The board of trustees sent a letter to the
president reprimanding him for the remarks and cautioning that repetition could
cost him his job. The president subsequently apologized for his remarks.
The second incident involved the head of a financial lending institution who
tweeted concerning reports that another company was moving its headquarters
from suburban Detroit to Atlanta. The tweet called
the company's CEO a "punk" and referred to the company's board of
directors as "invertebrate." He also referenced the company's
poor economic performance over the last five years. In a follow up interview,
the head of the company did not apologize and elaborated on his tweet.
The two incidents provide two different approaches to the response--apologize
or not. Perhaps the best approach when the boss speaks out is to remind
everyone, including the boss, of the applicable policy and to refer them to an
in Forbes which highlights the six things things that should not be done on
social media in light of the Amy's
Baking social media fiasco. Rule 5 is don't insult people.
For additional Labor and Employment law
insights from John Holmquist, visit the Michigan
Employment Law Connection.
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