Technology

New Workplace App Raises Old Issues

By Jon Hyman

Nov. 19, 2015

At the beginning of 2015, I reported on the launch of a new app — Memo — which allowed employees to post anonymous comments or complaints about their workplaces. Microsoft has now joined the fray of workplace griping apps with one of its own, calledForum.

According to the app’s description, it “lets ideas thrive, facilitates open dialogue within organizations, and enables employees to freely express themselves.” More importantly, unlike Memo, Forum appears to be non-anonymous. From iMore: “Forum has apparently been designed primarily for businesses to give their employees a chance to speak their minds and connect with their fellow workers and executives.”

While this app is new, the potential issues it raises for employers are not. Employers still have to work around the risks that arise from retaliation against employees who complain about work.

Here’s what I wrote about Memo back in January, which applies equally to Forum (or any other app or social network — Facebook, Twitter, etc. — on which employees gather to vent about their workplace).

As you should know, federal labor law gives employees the right to engage in protected, concerted activity—that is, discussions between or among employees about wages, hours, and other terms and conditions of employment. Employees’ discussions, for example, about an open-door policy, would be a textbook example of protected concerted activity.

Federal labor law prohibits employers from retaliating against employees for engaging in protected concerted activity. Retaliation isn’t Memo’s biggest risk because its posts are (supposedly) anonymous. However, federal labor law also prohibits employers from maintaining or enforcing policies that could chill employees’ right to speak about terms and conditions of employment.

Thus, if you think you can legislate Memo (or other similar apps) out of your workplace, you might want to think again. The NLRB will likely hold a very different opinion about the rights of your employees to talk about your company, anonymously or otherwise.

Before you try to regulate Forum or other social forums for employee discourse, think about whether you are better served embracing these technologies as a keyhole through which you can view your employees and their concerns. The alternative, regulating it, is simply not viable.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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