Episode 107: Back to the Salt Mines

For this episode of What the Hell Just Happened?! Paul Edwards sits down with CEDR Solution Center Senior Advisor Tiana Starke to discuss social media usage by business owners, including how one business landed itself in some deep water as a result of a post they made. What types of things do you need to be careful of as a business owner when it comes to your own social media postings? Listen as Paul and Tiana analyze this post, the risk it posed to the business, and how the entire situation could have been easily avoided.

Transcript

Paul: Hello. My name’s Paul Edwards, and welcome to the WTHJH podcast. You’re about to listen to an episode of “What the Hell Just Happened in HR?”. 

I’m an HR nerd who loves to talk about HR with just about anyone who will listen. So, during each podcast, we’re going to delve into the solutions for dealing with a real-life HR issue. Plus, occasionally, we’re going to share some big-company, HR-strategy ideas. 

Keep in mind that for every HR problem you solve, there are state, federal, and local laws that govern what we can and cannot do. And now, let’s get started.

Tiana: Hi, Paul!

Paul: Hi, Tiana! I love that. You’re so cheerful today.

Tiana: Oh, yeah! I’m feeling bright and sunny today.

Paul:  Nice! I’m looking forward to your question.

Tiana: Oh, boy. It’s a juicy one today. So, before I get into my question, I kind of want to set the stage a little bit. So, when it comes to NLRA considerations and compliance…

Paul: National Labor Relations Act. For our one listener, that’s the National Labor Relations Act. And, just so you know, if you’re our one listener and you have only one employee, it still applies to you. 

Tiana: Still applies!

Paul: It applies across the entire country. And…should I explain a little more about what it is or are you gonna do that?

Tiana: I think you should explain it. This is actually a really good time… yeah let’s set the stage.

Paul: So, The National Labor Relations Act is enforced by the National Labor Relations Board, and it’s a little bit of a complicated thing, but I’m gonna simplify it for everybody. What the act basically says is that you cannot forbid your employees from discussing their benefits, wages, or working conditions. And, although the act is in service to unionization, it still applies whether or not somebody is trying to unionize. And I know our one listener doesn’t have a union coming at them right now…

Tiana: Right, not likely.

Paul: … but it still applies. Basically, it’s kind of like, look – if people can’t discuss their salaries or their safety conditions, if you forbid them from any of these things, then how could they improve their working conditions, much less join a union? And it’s a very well-known rule, it’s a very well-known law, and if you fall on the wrong side of this by, say, putting a policy in your handbook that just says, “Hey, you know, salaries are confidential.” If you put that kind of thing in your handbook that says, “Salaries are confidential and, therefore, employees are not to discuss it,” and you put some consequence, which is usually, you know, you could be fired for doing that, that’s actually not just a bad policy, that is an illegal policy. And it’s also a gift to opposing counsel and to the Board. They will come after you. I’ve seen them go after very, very small dental practices over this. So, okay… 

Tiana: Yeah. Definitely happens.

Paul: So, that was for our one listener. Okay. Alright. I hope I set the stage and it wasn’t too much…Wake up everybody! 

Tiana: You teed it up!

Paul: We’re getting to the question.

Tiana: Oh, we’re getting to it, and it is juicy. It is nerdy. So, okay. With everything that Paul has shared about the NLRA and where this applies to business owners – So, Paul, would you agree that normally, when we are looking out for NLRA issues, this comes up more in context of what the employee is saying, and an employer trying to regulate what the employee is saying?

Paul: Right.

Tiana: Okay, so, there was a recent article about a court case that took place related to regulating what the employer is saying on social media. So get a load of this.

Paul: Wow! Okay! I did not see this… So, everybody, this is a ‘What the Hell Just Happened?’ in HR. Tiana, are the tables being flipped here?

Tiana: The tables are being flipped. 

Paul: Okay, alright.

Tiana: And this is a major ‘What the hell is going on, here?’. 

Paul: Yeah, I have no idea how to answer this so this is gonna be good!

[Paul laughs]

Tiana: Okay, so, there is a news publication magazine, they’re called The Federalist. You might have heard about it.

Paul: Oh, yeah. I know The Federalist.

Tiana: Yeah! So, The Federalist, they’re the employer in this situation. They posted a tweet…

Paul: The Federalist are the employer?

Tiana: Yeah, The Federalist is the employer in this situation. They posted a tweet that says, “First one of you who tries to unionize, I swear, I’ll send you back to the salt mine.”

[Paul laughs]

[Tiana laughs]

Paul:  That’s funny, but not funny.

Tiana: Yeah, funny but not funny! So, what ends up happening in this situation, an employee is not the one who complains about this at all.

Paul: Oh really?

Tiana: Yeah. It’s actually a third party, totally unrelated to this business.

Paul:  Someone just says something about it?

Tiana: Yep! Someone sees the tweet and they report it to the NLRB, the National Labor Relations Board. So, the National Labor Relations Board actually brings a claim against this employer.

Paul: Wow!

Tiana: Yeah, and it goes up to the third circuit court of appeals. And basically what they’re trying to say is that the employer is threatening its employees…

Paul:  They’re preemptively doing this…

Tiana: from unionizing.

Paul:  And, so, the National Labor Relations Board brings the complaint.

Tiana: Mhmm, so the National Labor Relations Board brings the complaint. And ultimately what ends up happening… So, employees are interviewed, they’re even voluntarily providing affidavits to say “Obviously this was sarcastic. It was made in jest. Our employer has never antagonized us or tried to freeze our ability…’

Paul:  So, the Board investigates, which is something, everybody, that’s something the Board does which is almost as bad as what the outcomes can be. Because they do take all your employees, take them off-site. I mean, literally, like take them to a restaurant and sit with them and question them. They go through all sorts of records and stuff. So, it’s brutal.Okay.

Tiana: Brutal! And I’m so glad you said that, Paul, because this ended up taking three years to litigate.

Paul:  Yeah, that sounds about right. 

Tiana: So, like a nightmare.

Paul: Well, because The Federalist fought it. Let’s be clear on who The Federalists are. They are not known for being rollover people. It’s my podcast, I can say this, I am not a fan of The Federalist. I am a fan of, gosh, rabbit hole… I am a fan of the US Constitution, and I actually have learned… I just love it. I’m a history buff. And so, I do appreciate some of the things that I have learned through The Federalist. They’re named after the Federalist Papers, and I do like those. But I am not a fan of The Federalist. But nonetheless, you don’t need me to be a fan to exist. 

Tiana: Right.

Paul: Okay, so…

Tiana: Hopefully our one listener is not a fan of The Federalist.

Paul: Our one listener – just know that The Federalists are known for putting up their dukes and being like, “Okay, let’s go!” Alright, so they’ve put up their dukes and they’re gonna fight the Board.

Tiana: They put up their dukes. They’re gonna fight it…

[Paul laughs]

[Tiana laughs]

Paul: It’s to the judges. What did the judges do?

Tiana: Ultimately, the judges do rule in the employer’s favor.

Paul: In the employer’s favor?

Tiana: Uh-huh!

Paul: What is it because they felt… I’m just gonna ask. Because this is like a question… Did they feel like the Board didn’t have a position? They weren’t… was it kind of on a technicality, saying, “Look, you weren’t harmed by this”?

Tiana: Yeah. So, the basis behind it was really…

Paul: Standing. That’s the word I’m looking for, for us novices!

Tiana: Oh, yeah! The standing. So, their position was essentially that the comment was taken out of context and they even gave some examples here. You know, like, let’s say an employer tells somebody to break a leg. You know, if they’re saying this to an accountant, maybe this comes across as a threat to that person… 

Paul: Oh!

Tiana: …But, if you say it to an actor… 

Paul: …It means something different.

Tiana: …it means something different. So, they said the analogy there of “We’ll send you back to the salt mines” is so hysterical and bizzare in this situation because these are people tapping away at their computers, so…

Paul: “It must be satirical,” is what they’re saying.

Tiana: It must be satirical.

Paul: The Federalists were not kidding about that. But, go ahead!

[both laugh]

Tiana: And that’s what’s debatable in this situation! 

Paul: Yeah.

Tiana: And, really, that’s kind of the long and short of what happened with this case. But I wanted to get your take on, does this add any nuances on advise to business orders in terms of being careful about NLRA?

Paul:  So, what the hell just happened is that we had a different kind of case come up. The Board brought a direct complaint. It gets into the circuit. They rule… I don’t think anything has changed here at all.  I think that was not a really smart thing for them to… as employers.  

Tiana: That makes sense.

Paul: Now, as a society,  I think that’s a completely different thing. But, as an employer… that was not a smart thing for them to be doing. And I think they probably would recognize that, although I can’t put words in their mouth

Tiana: Um hmm.

Paul: But, yeah, the guidance is the same. Tongue-in-cheek, these things that you create, these words you say are often taken literally.

And here’s the other thing, Tiana, and I think we can close with this. The Federalists have more money than God. And, so, they were able to get through that three or four years of those investigations. They were able to hire… I have to imagine they spent a half a million dollars on their defense…

Tiana: Oh, I’m sure. 

Paul: …or more. Again, I don’t have a figure. The people… Our listener doesn’t have a half a million dollars or three years. This kind of Investigation for this tongue-in-check sort of thing which, on the face of it was not really smart, would really be devastating. So…

TIana: That makes absolute sense, Paul.

Paul: So, The Federalist won, but they didn’t win, at least on the terms that I feel are a win. They ended up getting sucked down a hole. There are all kinds of things that we can go into about overreach and that sort of thing. But the Board’s known for overreach. 

Tiana: Yeah

Paul: They come out blazing. It’s scary. It is really scary.

Tiana: And thank you for unpacking that. Because I think that’s the really important takeaway here. It’s not necessarily that you win the case or that it’s in your favor, but three years of litigation is not something that anybody wants to face.

Paul: Yeah. A lot of times when we are giving guidance, we’re kind of giving the choice, “Do you want to be right here, or do you want to get through this?” 

Tiana: Exactly. [laughs]

Paul: And sometimes…always, almost always, getting through this is the best course.

Tiana: Yeah. And watch out what you say on social media. 

Paul: Yeah.

Tiana: No threats to employees, whether it’s tongue-in-cheek or not. [laughs]

Paul: Whether it’s tongue in cheek or not. Absolutely. That was interesting.

Tiana: Yeah! I thought so, too.

Paul: Wow. I didn’t know that was going on. I should pay closer attention.

Voiceover: Thanks for joining us for this week’s episode of What The Hell Just Happened?! If you have an HR issue or a question, you’d like us to discuss on this podcast, send it to podcast@WTHjusthappened.com. For more HR advice and insights from Paul and his team of experts, you can also join our private Facebook group, HR Base Camp or visit HRbasecamp.com. Make sure you tune in next week. And, remember: when you improve your workplace, you improve your life.

This podcast is sponsored by CEDR HR Solutions. You’re a manager, not a lawyer. Don’t waste your valuable time researching employment laws and which HR policies are legal. Let CEDR HR solutions take the burden off your shoulders. We believe that better workplaces make better lives, which means we strive to meet our members where they’re at and give them the tools and the education they need to ensure their practices remain compliant and run as smoothly as possible. We’ve got the expert knowledge you need whenever you need it, with a customized employee handbook made just for your office and unlimited support. Visit cedrsolutions.com to learn more.

Aug 16, 2022

Friendly Disclaimer: This information is general in nature and is not intended to provide legal advice or replace individual guidance about a specific issue with an attorney or HR expert. The information on this page is general human resources guidance that is believed to be current as of the date of publication. Note that CEDR is not a law firm, and as the law is always changing, you should consult with a qualified attorney or HR expert who is familiar with all of the facts of your situation before making a decision about any human resources or employment law matter.
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