It’s agreed. Social media can be a great tool that IHRSA clubs can use to grow their membership base, as well as retain loyal customers, by connecting with them and creating “buzz” around their programs and services.
However, the public, uninhibited nature of this communication mode can pose some major challenges for club operators. What problems are most likely to occur? Here are some hypothetical scenarios that could arise in your club, and what you can—and can’t—do under the law as it stands right now.
Situation #1: Sherri S. and Christine E. are Zumba instructors at ClubFun. While Sherri loves her work, she feels that the club could be more orderly, and that she’s not getting enough break time. But, instead of speaking directly with her manager about these issues, she voices her complaints to Christine through social media, tweeting, “Not too much to ask to keep facilities neat and give employees the breaks they deserve!” The next day, Sherri’s manager says the tweet was disrespectful, and he’s considering whether or not to retain her as an employee after her sarcastic outburst.
Question: Can an employee be terminated for what a company sees as misuse of its social media accounts?
Answer: No. The National Labor Relations Board (NLRB) prohibits restrictions on union and non-union employees because their concerted activity is protected. Individuals are allowed to talk about conditions of employment to co-workers, even if that conversation takes place on social media.
The NLRB has issued a number of judgments in this area. One of the most recent dates from March 2016, when an administrative law judge ruled that Chipotle violated the law by applying an unlawful social media policy that required an employee to delete tweets from his personal Twitter account. One of the tweets that Chipotle asked to be deleted arose from a customer tweet, “Free Chipotle is the best thanks.” The employee responded, “Nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really [sic].”
Situation #2: Tom B. is a dedicated member of the marketing team at SocialFit. As part of his role, Tom is active on Twitter.
He constantly tweets with exuberance and excitement, discussing the benefits of club membership with all of the company’s followers. Tom occasionally tweets during off-hours to engage followers who may have missed specific posts, and asks to be compensated for the additional promotion he’s been doing for the club.
Question: Should employees be paid for the work that they do on social media after work hours?
Answer: Thanks to federal and state hour and wage guidelines, the answer is—it depends. The first thing to determine is whether Tom B. is exempt from overtime requirements. If he is, then the salary he’s being paid covers tweets after regular work hours. Exempt employees are paid to complete their job duties, regardless of the number of hours.
If, however, Tom B is an hourly employee, then federal (and many state) wage and hour laws prescribe that he must be paid overtime for hours worked that exceed 40 per week.
In this era of smartphones and remote access to networks, it’s easy for a grey zone to exist when an employee is “off the clock” and away from the club, but still has the ability to send out social media posts.
Therefore, it’s very important for employers to create a clear policy that addresses whether or not work done outside of working hours is allowed.