At this time of the year we all should take a few moments (precious though they are) and remember the trials of the past 12 months. We’ve all had them, some more than others. Many people have gone through things they never would have thought would affect them. Some were a bit more prepared for their trials, but others were completely thrown and emotionally devastated by them. Research has showed us that people who suffer catastrophic issues can and do overcome them by using their resilience (the belief that they can indeed “bounce back”) and their coping mechanisms (friends, relaxation or other kinds of therapy, pets, etc).
From now till spring, seasonal affective disorder (SAD, a type of major depression that occurs this time of the year) may affect more employees who live in northern areas of the country. Symptoms can include sadness, changes in appetite or weight, sleep problems, lack or diminishing of energy, feelings of worthlessness or guilt, lack of interest in activities, or suicidal thoughts. Employees affected by SAD may use sick leave more often, take more breaks from work, and react to their condition in ways that do not help to resolve it. Federal law prohibits employers from discriminating against disabled workers, so SAD sufferers may be entitled to schedule changes, accessibility to windows to obtain more light, etc. Depression during the holidays is at an all time high.Before it gets complicated and conflicts ensue, reach out to SAD workers. Be sure that they know they can talk to someone who can help them with strategies that really work.
(Contributed by WorkExcel.com)
— think twice before striking back at employee social media comments
By Steven M. Richard, Todd R. Shinaman and Joseph A. Carello
Social media has rapidly transformed the nature and scope of employee commentary about the workplace. With one click, employees’ electronic postings can reach supervisors, co-workers, clients and customers. Vexing issues arise in determining whether employees are immune from disciplinary action or termination of employment for speaking their minds on social media. The law is evolving as it refines standards applicable to traditional modes of workplace communications (e.g., “water cooler” discussions or face-to-face encounters) to the realm of social media.
On August 22, 2014, the National Labor Relations Board (NLRB) issued a significant Decision and Order holding that two employees were wrongly terminated for participating in a Facebook dialogue unfavorably depicting their employer’s handling of a workplace concern—one for “Liking” a posted comment and the other for posting a comment about her situation. Three D, LLC d/b/a Triple Play Sports Bar and Grille and Sanzone and Three D, LLC d/b/a Triple Play Sports Bar and Grille and Spinella, Cases 34-CA-012915 and 34-CA-012926. The NRLB’s ruling provides important guidance as to when social media commentary is protected under the National Labor Relations Act (“Act”) and how far it must go before it can be deemed to lose the protection of the Act.1
Section 7 of the Act provides employees with the right to organize and engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” An employer violates Section 8(a)(1) of the Act by interfering, restraining or coercing employees in the exercise of their Section 7 rights, which can include conversations via social media such as Facebook, Twitter or blogs. Yet, the NLRB has recognized that online employee communications can implicate legitimate employer interests, such as the right to protect its business concerns and orderly operations. There are often unclear lines of demarcation between these competing rights.
Jillian Sanzone (“Sanzone”) and Vincent Spinella (“Spinella”) were employed at Triple Play Sports Bar and Grille in Watertown, Connecticut. In early 2011, upon filing her tax return, Sanzone discovered that she owed income taxes to the state of Connecticut apparently due to her employer’s withholding practices. Another restaurant employee informed Sanzone that she also owed taxes. Concerns spread among the employees about their employer’s withholding calculations, and the owners arranged for staff to meet with the restaurant’s accountant and payroll company.
Sanzone and Spinella never made it to the scheduled meeting, as their social media activity sealed the fate of their employment beforehand. A former restaurant employee posted the following status update on her Facebook page, “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…[expletive deleted]!!!!” Several of the former employee’s Facebook friends, including restaurant employees and customers, joined in. As the dialogue ensued on the Facebook page, Spinella clicked the “Like” button under the former employee’s initial status update and Sanzone posted a single comment stating “I owe too. Such an [expletive deleted][.]” (referring to one of her bosses). When the restaurant owners learned of this social media activity, they promptly fired Sanzone and Spinella, construing their participation in the Facebook discussion to constitute disloyalty.
Sanzone and Spinella contended that they were wrongfully terminated in violation of the Act. An administrative law judge agreed and ruled that the employer responded unlawfully to the employees’ protected concerted activity. The restaurant appealed to the NLRB, which heard the matter through a three-member panel.
The NLRB’s analysis
Before the NLRB, the restaurant did not dispute that the employees’ participation in the social media activity was concerted as part of a sequence of employee communications about withholdings that initiated in the workplace, or that its employees had a protected right to participate in a Facebook discussion about their tax concerns in furtherance of group action. Instead, the employer contended that the two employees wrongfully adopted the former employee’s allegedly defamatory and disparaging comments on her Facebook page and therefore lost the protection of the Act.
The NLRB addressed the proper framework to apply to the employees’ participation in the social media discussion. The restaurant argued that the NLRB should apply its standards established in Atlantic Steel Co., 245 NLRB 814 (1979), which balance the following four factors: (1) the place of the discussion; (2) the subject matter of the discussion; (3) the nature of the employee’s outburst; and (4) whether the outburst was, in any way, provoked by the employer’s unfair labor practices. Focusing on the first factor (the place of discussion), the NLRB noted that it has traditionally applied the Atlantic Steel Co. standards to face-to-face communications in the workplace. The precedent is ill-suited to apply to employees’ off-duty, off-site use of social media to communicate amongst themselves and with third parties.
Instead, the NLRB relied upon the standards prescribed by the United States Supreme Court in NLRB v. Electrical Workers Local 1229 (Jefferson Standard), 346 U.S. 464 (1953) and Linn v. Plant Guards Local 114, 383 U.S. 53 (1966). In Jefferson Standard, the Court upheld the discharges of employees who publically attacked the quality of their employer’s product and business practices
without relating their criticisms to a labor controversy, which constituted disloyal disparagement outside the protections of the Act. In Linn, the Court limited the availability of state-law remedies for defamation in the course of a union organizing campaign to instances where the complainant “can show that the defamatory statements were circulated with malice” and caused damage. The NLRB concluded these cases offer the better framework to determine whether employee social media commentary, amongst themselves and reaching third parties, “is not so disloyal, reckless, or maliciously untrue to lose the Act’s protection.”
The NLRB made an important determination regarding the precise scope of the social media activity at issue. It held that the only conduct to be analyzed entailed Sanzone’s posting (“I owe money too. Such an [expletive deleted].”) and Spinella’s clicking of the “Like” button under the former employee’s initial comment posted on her Facebook page. The NLRB concluded that Spinella’s “Like” indication related only to the initial comment and was not an expression of approval of any ensuing comments, which he could have “liked” individually. The restaurant argued that Sanzone and Spinella should be held responsible for all of the comments in the social media exchange, some of which implied that the owners pocketed employee funds. Without deciding whether these other comments were protected, the NLRB found that neither Sanzone nor Spinella would lose the protections of the Act merely by participating in an otherwise protected discussion in which other persons made unprotected statements.
The NLRB emphasized several important aspects of the two employees’ social media activity. They participated in a Facebook discussion in relation to an ongoing labor dispute affecting them. The social media discussion, including Sanzone’s and Spinella’s participation, was not directed to the general public. Although the record did not make clear the privacy settings on the former employee’s Facebook page, the NLRB found that the social media discussions “were more compatible to a conversation that could potentially be overheard by a patron or other third party,” as compared to a statement directed to the public at large. The NLRB concluded that the two employees did not disparage their employer’s’ products or services, rather they engaged in social media to seek and provide mutual support for a group activity addressing the terms and conditions of employment.
In another important aspect of its ruling, the NLRB reviewed the restaurant’s Internet and blogging policy and found it to be in violation of the Act. The policy warns that “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.” Two of the three panel members, Kent Y. Hirozawa and Nancy Schiffer, deemed the policy to chill the exercise of Section 7 employee rights under the Act. Member Philip A. Miscimarra, while agreeing that the restaurant wrongfully terminated Sanzone and Spinella, disagreed with the finding that the policy violated the Act. The dissent concluded that the policy does not expressly or implicitly restrict protected Section 7 activity and, instead, aims to prevent the revelation of proprietary information and unlawful statements about the company, its management and employees.
Lessons from the NLRB’s ruling
Impulsive and emotionally driven employer reactions to workers’ unflattering, slang, “off the cuff” or even vulgar commentary on social media can lead to trouble under the Act. This is especially true where the employer is aware of or can easily construe that the employees turned to social media to address workplace issues and further their exercise of protected Section 7 rights.
Of particular significance and forging new ground, NLRB’s ruling makes clear that the simple act of clicking “Like” on Facebook without doing anything else or saying anything more can constitute protected participation in concerted activity. A “Like” clicking may express agreement with commentary regarding an ongoing workplace concern as was the case with Spinella’s action, rather than be evidence of disloyalty as his employer contended.
Further, the ruling makes clear that an employer faces a high burden to prove that social media comments are “so disloyal, reckless, or maliciously untrue” such that they may lose their protection under the Act. Employers will need compelling, persuasive and credible evidence to have any prospect of success regarding such a depiction of a social media commentary.
Finally, employers should review their social media policies to ensure that they are in compliance with the Act. While the NLRB panel split in its review of the policy at question in the Triple Play case, employers must make certain that their policies’ terms and restrictions are not so ambiguous and broad such that they can reasonably be construed to reach and impair protected concerted employee activity under Section 7 of the Act.
The NLRB, as well as courts, will continue to speak about the impact of social media as it pervades workplace issues. We will monitor these developments closely and proactively report on them, as social media impacts the delicate balance between employees’ rights and employers’ business concerns.
For more information on the content of this alert, please contact your regular Nixon Peabody attorney or:
— Steven M. Richard at firstname.lastname@example.org or 401-454-1020
— Todd R. Shinaman at email@example.com or 585-263-1265
— Joseph A. Carello at firstname.lastname@example.org or 585-263-1434
A copy of the NLRB’s Decision and Order may be obtained at http://www.nlrb.gov/case/34-CA-012915
Photo Courtesy of Eric Peacockby Jodi Jacobson FreySummary:Work organizations now realize they can help identify depression, a leading risk factor for suicide and the leading cause of lost work productivity.The American Association of Suicidology said it best when it created this logo for the association: “Suicide prevention is everyone’s business.” By everyone, the association includes employers and work organizations. Considering that the workplace is where the majority of working-age adults spend a significant portion of their day, and sometimes night, it only makes sense that employers and coworkers join the national fight against suicide.Over the past 10 years, work organizations have begun to realize that they can help identify and treat working adults suffering from depression — a leading risk factor for suicide and also the leading cause of lost work productivity. Despite the knowledge that depression is highly correlated with suicide risk, workplaces have been slow to embrace their potentially critical role in preventing suicide through workplace-based programs. Many of the programs already being offered by employers address depression and can be easily and often freely expanded to also include elements of suicide prevention. The connection between depression and suicide is clear, and employers, large and small, have an important role to take in addressing the public health problem of suicide in our country.Detecting and treating depression among employees is one way employers can play a significant role. In fact, many employers are already making inroads in minimizing the negative effects of depression and related mental health issues through employer-sponsored benefits such as employee assistance programs (EAPs), workplace wellness programs and occupational health services.Some of the more commonly offered employer-sponsored interventions at the workplace to identify and respond to depression include workplace-based public awareness campaigns that involve posting suicide warning signs, referral resources and general anti-stigma messages, workplace-based depression screening, such as the program offered through Screening for Mental Health and other early interventions that can be cost-effectively offered through EAP counseling, wellness programs and related occupational health programs.Improving the detection and treatment of depression and therefore preventing suicide will have a positive impact on the employee and, in the process, the business success of the company. By expanding existing workplace-based wellness programs that often focus heavily on identification and treatment of depression among employees, employers are able to increase the number of employees seeking and obtaining treatment — depression often has low rates of treatment because it is not accurately identified. In fact, prior research shows that, at any given time, depression affects between one-tenth and one-fifth of U.S. employees (Kessler et al., 2008). For employers, this means that for every 100 employees, depression costs employers about $62,000 annually. The majority of this cost does not come from treatment (treatment only accounts for about $9,000), but, rather, costs related to lost work time resulting from sick day absence, work disability (short term and long term disability days) and “presenteeism” (underperformance at the workplace because of illness). In addition, depression and suicide contribute to hidden costs to employers such as lowered morale, increased stress and lower employee engagement and loyalty. The effect of a suicide on coworkers can also be devastating.In addition to treatment of depression, employers who work with their EAPs and other wellness programs to identify and respond to depression will improve other chronic health conditions. This is because employees who suffer from depression also suffer from an average of 5.1 other chronic health conditions that can complicate treatment and increase costs to the workplace. For example, some of the most serious comorbid conditions in terms of lost productivity with depression include anxiety (48% of employees with depression also have anxiety); chronic fatigue (46%), obesity (29%), chronic sleeping problems (26%) and chronic back and neck pain (32%). (The statistics are from data collected by Integrated Benefits Institute, a leading research organization in health and productivity. See www.ibiweb.org for more information.)Research suggests that medication and psychotherapy are effective in 70% to 80% of depression cases (RAND, 2008). Employers can require their EAPs and other workplace wellness programs to screen all employees for depression using free and simple validated tools such as the 9-item Patient Health Questionnaire (PHQ-9), where the ninth question asks specifically about suicide risk. Employers can also provide comprehensive depression care management programs for employees screened or otherwise identified to have serious depressive symptoms or for those at increased risk, such as employees who recently went out of the workplace on short-term disability (Desiron, de Rijk, Van Hoof, & Donceel, 2011; Lerner, Rodday, Cohen, & Rogers, 2013; Lo Sasso, Rost, & Beck, 2006).EAPs are one way through which workplaces have historically and effectively provided help to employees with depression and other mental health and personal problems. EAPs have been shown to be effective in reducing depressive symptoms among employees, including thoughts about suicide (University of Michigan Depression Center). EAPs can provide identification and screening services, such as on-site employee depression screening; however, EAP services go well beyond simple screening and identification. Depending on the services purchased by the employer, EAPs can provide comprehensive assessment, short-term counseling and referral and case management services for longer-term help in the community. Additionally, well-positioned EAPs, those with more on-site access and easy access to consultation with workplace managers and leaders, help to ensure that EAPs are even more effective at recognizing and responding quickly to employee problems such as suicide risk.Additionally, strategically positioned programs can offer responses that are integrated and in line with the culture of the broader work organization to better serve employees while also supporting workplace productivity. Highly visible and management-supported EAPs can help to reduce stigma toward mental health problems, which in turn will encourage employees to seek help at an earlier stage of their problems and be more responsive to early intervention.It is important that all employees in the workplace take suicide risk seriously. They should be trained to identify depression and suicide risk among coworkers, not be afraid to ask questions about the well-being of coworkers and refer them to EAPs or other resources when needed. Some examples of companies working to train employees (a designated employee, group of employees or all employees) and raise awareness of suicide and mental health in general are: Chesapeake Energy, DuPont and Johnson & Johnson (see Partnership for Workplace Mental Health for these and other examples).EAPs can work with employers to develop appropriate training material to help reduce the stigma of mental health problems, not limited to just depression and suicide, so that everyone is able to play a role in contributing to the well-being of the workplace. Just as employees understand and can identify physical safety risks such as falling hazards and safe lifting practices, employees should also understand what to look for when employees may be at risk for a mental health problem.Even employers who are not able to provide comprehensive services such as EAPs and workplace wellness programs can take small steps that can have a huge impact on saving lives.One simple first step employers can take to increase awareness of depression and suicide at the workplace is to promote the phone number for the National Suicide Prevention Lifeline (1-800-273-8255) at different locations throughout the workplace where employees will readily see signs, posters and online messages. The Lifeline is a free hotline that can be utilized by anyone who might want to talk with a professional about mental health issues and well-being. Promoting the Lifeline is free to the employer and can be a good way to demonstrate the employer’s interest in the mental wellness of employees. Utilizing free hotline services such as Lifeline is especially important for employees who don’t have access to EAP or other workplace wellness programs.Overall, we know that workplaces that offer more control to their employees with regard to working conditions that can lower workplace stress, do better with regard to workplace productivity and depression. Therefore, it is critical that employers step up the plate and review and revise workplace policies and programs that are designed to support employees who may be suffering from depression and therefore have increased risk for suicide. By expanding existing programs to include assessment and treatment for depression, employers are working to improve productivity while also preventing suicide at the same time. It is a win-win for employers, employees and society as a whole.This article was written by Dr. Jacobson Frey; Kimberly Jinnett, PhD; and Jungyai Ko, MSSA– See more at: http://insurancethoughtleadership.com/why-employers-must-help-stop-suicide/#sthash.azuCx0tY.dpuf
Motivating others is all we hear about. What about motivating ourselves?I want to share my 7 favorite ways to motivate ourselves for success.
- Ask yourself why. After you set your goals, this question will keep you going…. and going…. and going.
- Visualize success. Imagine yourself after reaching your goal: the city and state you live, your clothes, the people with whom you work, the house where you live, and the smile on your face as you deposit that last check!
- Chunk. Create smaller goals and rewards along the way — things that are easy to reach so that you have steppingstones, and feel good about yourself.
- Celebrate. This is the most important one to me. Celebrate your successes in life (professionally and personally). This keeps the momentum and your enthusiasm turbo-charged. Reward yourself, treat yourself, and enjoy those precious moments.
- Be flexible. Period.
- Ask for help. It’s my belief you come from strength when asking for help. It does two things: it frees you up, and allows others to take responsibility.
- Hang ’em up. Get all your complimentary letters, awards, certificates, accolades, and frame them. Then, hang them up where you can see them every day. There are going to be days when you need these reminders.