Trash your social-media policy

Terrific advice from HR Examiner‘s Heather Bussing on what to do with your company’s social-media policy, especially in light of the NLRB’s continuing war on these policies.

The best way to prevent employees from saying bad things about you is to hire the right people, give them the resources they need to do their work, and let them do it. When problems arise deal with it based on what happened.

When you fire someone, it should be for their actions, not because they violated a policy. If employees are constantly violating policies, you have a serious management problem. And more policies won’t fix it.

I agree wholeheartedly with Heather’s advice, and not just because she cited my two-word blogging policy. Along the same lines, here’s an approach for how companies should handle having a Facebook policy.

Why arbitration sucks — even for employers

In the wake of Major League Baseball’s firing of longtime arbitrator Shyam Das after he ruled against it in the Ryan Braun case, I thought it might be a good idea to examine why this fashionable alternative-dispute-resolution mechanism is deeply flawed.

Arbitration has long been the norm in labor cases (that is, cases between unions and management). And baseball arbitration is of the labor-law variety. But increasingly, nonunionized employers are choosing to subject themselves and their employees to arbitration. Which is dumb.

“Why?” you may ask. I’m glad you asked. Here is my jeremiad on arbitration, from Chapter 12 of Firing at Will: A Manager’s Guide:

Arbitration is much less common in employment cases, and usually only happens when there is a preexisting contract providing for it if there is a dispute. In other words, the employee would have signed an agreement — often at the start of employment — waiving his rights to go to court or an agency and instead having the dispute resolved by an arbitrator.

The arbitrator is chosen by both sides from a list of potential neutrals. In effect, he acts like a judge. Unlike a mediator, his job is to make a decision at the end of the case.

Many employers and management lawyers think it’s a good idea to have mandatory-arbitration clauses in employment agreements. They think arbitration is a good idea because it tends to be cheaper and faster than the agency-and-court system. They believe that arbitration ends up favoring the employer.

But they are wrong.

Arbitration is a terrible idea, for four reasons. First, the less-formal approach to litigating the case, dispensing with the evidentiary rules, means that the employee can bring in evidence that never would have seen the light of day in court. As I said before, rules of evidence are a good thing if you have a lawyer who understands them. Ignoring the rules turns the case into a free-for-all.

Second, there is no precedent in arbitration. In the court system, the judge generally has to abide by past decisions of earlier court cases, especially higher-level courts. Our legal system is based on the authority of precedent. But in arbitrations, there’s no such thing. Yes, lawyers can cite to past arbitration cases for examples of what arbitrators have done in similar cases. But the arbitrator is free to ignore it.

Third, there is almost no ability to appeal a bad decision. I don’t want to overstate this. While you can almost always appeal a bad decision at an agency or in a court, appeals typically have little chance of success. But it’s even worse in the arbitration world. Yes, you can file the equivalent of an appeal in court to prevent the enforcement of an arbitration award. But you shouldn’t bother: there’s next to no chance of it succeeding.

My final reason is the most important (and why arbitrators want to smack me in the nose). Remember how I said a few paragraphs ago that arbitrators are chosen by the parties? That’s the whole problem. If an arbitrator doesn’t get chosen for cases, he can’t make money. And if he gets a reputation as being too pro-employer, plaintiffs’ lawyers will stop agreeing to use him. (Likewise, if he gets a pro-employee reputation, management lawyers will stay away.) Trust me: this happens. At our firm, we had a list of arbitrators that we would never use because we felt that they were too likely to side with the employee.

In court cases, judges are assigned, not chosen. So the judge needn’t worry about acquiring a reputation of favoring one side or the other. But an arbitrator has some pressure to avoid that sort of reputation. This pressure naturally moves an arbitrator to try to come up fairly even-steven over time, with a rough balance of wins for both employers and employees. Sounds fair, right?


Coming out more or less fifty-fifty sounds like it evenly benefits both employers and employees, but in fact it drastically favors employees. Why? Because employees don’t win half of the cases filed. At the various antidiscrimination agencies, the percentage of cases where probable cause is found tends to run in the 5- to 15-percent range. (There are no reliable figures from court cases.) There are a number of reasons for these relatively low success rates.

For example, discrimination claims are inherently difficult to prove; it’s hard to get inside a manager’s head and find a discriminatory bias. Also, many cases are merely disgruntled employees’ weapons of last resort. Many fired employees bring their cases because of anger instead of an honest belief of having suffered discrimination. So a low success rate is to be expected. That’s why a success rate approaching 50 percent, which is more typical with arbitrators, dramatically favors employees.

So if your employment lawyer tries to talk you into arbitration agreements, ask her if she’s thought about these points.

To order your own copy of Firing at Will, which is a wicked-good idea if your ever have to deal with employees, click any of the following links:

To read Chapter 1 for free, click the link at the top of the page.

Are social-media users less ethical?

A recent study suggests that they might be. HR Bartender’s Sharlyn Lauby explains on Mashable:

One of the most fascinating conclusions in the report is that “active social networkers show a higher tolerance for activities that could be considered unethical.” But Harned says the findings are not an indictment about the character of social networkers: “It appears that they are more willing to consider things that are ‘gray areas’ — issues that are not always clear in company policies as wrong; and that’s an area for further study.”

I have some issues with the premise of the study, and Sharlyn kindly included some of my thoughts in her piece.

A Facebook policy for grown-ups

Our Facebook Policy

We have no Facebook policy.

FAQ on our Facebook policy

Say what?

That’s right. We don’t have one.

Don’t we have to have one?

Says who? Employment lawyers? Been there, done that, got the t-shirt. No, we don’t have to have one.

Why not?

Because we only hire grown-ups to work here. And grown-ups don’t need to be told how to behave.

But isn’t Facebook different?

Why? Because it’s on a computer? Time to let go of the twentieth century, Orville. Yes, sometimes things are on computers now. Or phones or tablets. Things like books, movies, TV shows, music, mail, phone calls, funny cat pictures, snarky comments, and other social interactions. Deal with it.

I don’t know. I’m dubious.

I’ll say.


Oh, nothing.

There can’t be any harm in having a little Facebook policy. Just to keep the employment lawyers happy. Please?

No. In fact, a Facebook policy can cause harm. The National Labor Relations Board, which is trying to expand its role in the nonunionized sector, is actively going after companies with dumb Facebook policies.

Oh. That seems uncool.


Still, without a Facebook policy, how do we know what we can and can’t post?

Look: somehow you managed to figure out that it’s a bad idea to yell on a street corner that your customer is a moron. Yet we have no Street-Corner-Yelling Policy. And you accurately deduced that you probably shouldn’t shout in a crowded theater that your coworker sleeps with farm animals (or shout “Fire!”; I think I learned that in law school). Yet we are completely bereft of a Shouting-Slanderous-Statements-in-Theaters Policy. Facebook is no different.

So nothing will happen to me if I post on Facebook that my coworker sleeps with farm animals?

No, dumbass. We’ll fire you faster than the Red Sox can blow a nine-game division lead in September. The fact that you’re thinking that means we probably shouldn’t have hired you in the first place.

But there’s no policy against it.

Now you’re catching on. That’s right: there’s no policy against it. We know you’re a grown-up and we trust that you’ll be professional and respectful of others. If our trust was misplaced, we’ll fix that.

Got it. Thanks.

Have a great day.

A twitterable Twitter policy (updated)

This is a post I wrote nearly three years ago over at Gruntled Employees. But it keeps getting rediscovered and passed around in social-media circles. Since simplicity is at its essence, I figured it was worth republishing here. I’ve updated some of the facts. Feel free to adopt it as your own company’s policy. Just tell people where you got it when they ask about its awesomeness.

Twitter_logoYou know that something new has gone mainstream when the employment lawyers get involved. So it is now with Twitter, the microblogging service that is currently taking over the universe.

Twitter has grown rapidly and enormously. There are approximately six million users right now. (Update Feb. 2012 It’s now estimated at 462 million users. That’s a little bit of growth over three years.) This is much smaller than Facebook or MySpace, the older members of the social-media set. (Update Feb. 2012 What’s a “MySpace”?) But the pace of growth has been incredible; one source pegged it at 1,000 percent in 2008 alone. (Update Feb. 2012 Over the last three years, it’s like a jillion percent, which is one followed by a wad of zeroes, or ten to the wad.)

By most accounts, the demographics of Twitter users skew older and more professional than Facebook. For example, 83% of Twitter users are 26 or older, compared to 60% of Facebook users. (Source: this cool 2011 infographic.) That makes sense, since Facebook began as a college-oriented site. (There are also far more teens on Facebook than on Twitter.) Also, it is said that “Facebook is about people you used to know; Twitter is about people you’d like to know better.” (The widely repeated quote is from a Globe and Mail article by Ivan Tossel, but you have to pay to read it.)

Some of you may still be asking, “What is this Twitter thing, anyway?” (“And don’t say microblogging again, because that doesn’t help.”) (Update Feb. 2012 Are people still really asking this?) Twitter is a free service that allows users to send very short messages (called tweets) over the web to people who (in theory) care. How short is very short? No more than 140 characters, including spaces and punctuation. In fact, they even have a name for a tweet that is exactly 140 characters long: it’s called a “twoosh.”

According to the site itself, the point of the site is to “Find out what’s happening, right now, with the people and organizations you care about.” And of course, to tell the people who care about you what’s happening with you. To be sure, most people don’t care to learn about the humdrum of your daily life: “I’m still in line for my venti nonfat extra-hot latte.” Or “Mr. Biddles rolled over again. Silly cat. LOL.” That sort of tweet is of value to exactly no one. (Even Mr. Biddles would cough up that hairball.)

Where it does become valuable to businesspeople is where people answer the question, “What are you thinking about?” Or: “What is interesting to you?” Then you try to find other people who might share your interests, and you “follow” them to learn what they’re thinking about. Often, they will reciprocate by following you. Done right, people can use Twitter as a powerful networking service to get in front of potential clients or colleagues within their industry.

As often happens when employees start doing something new, companies soon want their lawyers or HR people to create policies to restrict it. This happened in the Nineties, when employers got nervous about email and internet usage. More recently, companies have instituted blogging policies, and guidelines for the use of MySpace or Facebook. So it’s no surprise that we’re starting to see requests for Twitter policies.

Longtime readers of Gruntled Employees know how I feel about the hyperlegislation of the workplace by zealous policymakers. Well-meaning HR professionals and employment lawyers tend to throw the baby out with the bath water when it comes to policing employee behavior, whether online or not. I generally advocate a simpler approach that involves treating employees as grown-ups who have judgment. See, for example, “A two-word corporate blogging policy” and “The world’s shortest employee handbook.”

With that said, here is my take at a corporate Twitter policy that has the extra added benefit of being itself twitterable:

Our Twitter policy: Be professional, kind, discreet, authentic. Represent us well. Remember that you cannot control it once you hit “Tweet.”

(Feb. 2012 update The “Tweet” button used to say “Update.”)

And yes — that’s a twoosh: exactly 140 characters of pure employment-law goodness.

By the way, you can follow me on Twitter at @jayshep — as long as you follow the policy, too.

[By the way, without realizing it, I totally boosted the cat-rolling-over bit from Guy Kawasaki’s excellent post, “Looking for Mr. Goodtweet: How to Pick Up Followers on Twitter.”]

Want to learn more?

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