If you pay attention to news and social media, the story of a Lacoste salesman losing his job after posting his paycheck is nothing new. What is news to me is that we are all surprised. Well, not me. When you lack empathy and understanding in your attempts to control, you will always get it wrong. So Lacoste got it wrong.
I even have some problems with the article. I think they get the conclusion wrong. Any attempt to prevent your employees from engaging in protected-concerted activity is a violation of the National Labor Relations Act (NLRA). Protected means work conditions, including pay. Concerted means intended to elicit conversation with other employees.
The article points out that pay scales could be important details for a competitor. Really? For someone making $15/hr plus 3% commissions. Would the poster have jumped from Lacoste to a competitor if they saw this and offered $16/hr plus 4% commissions? Come on people. If that is my industry, I know what I want to make as a profit margin. I know what my fixed costs are, and what my variable costs are. I know how many shirts I need to sell to turn an acceptable profit margin. I am sure that Lacoste set his pay based on that.
What if the salesman had just listed his position on LinkedIn and got contacted by a competitor. “Hey, we think you are great and can offer you a better opportunity. Tell us what you are making now and let’s see if we can beat it.” The conclusion that opening the kimono might dissuade others from seeking them out as an employer is specious. If your pay scale isn’t appropriate for the job, then it isn’t appropriate for the job.
The NLRA and the NLRB Don’t Care About Your Confidential Information
If you have any provisions in your employment agreements that prohibit, even implicitly prohibit, discussions about working conditions, you are in trouble. I have told you over and over again to dump your social media policy for reasons just like this. It seems in this case, that he actually signed some other form of a confidentiality agreement. Doesn’t matter. You cannot enforce a contract that prevents a legal right. At least in this space. You cannot prohibit concerted discussions about working conditions. Calling it confidential doesn’t change the discussion. If an employee wants to discuss their pay, they are allowed to. If the salesman was an executive, that might change the analysis. But he was not.
Griping Alone is Not Concerted, Griping to Hundreds of Followers May Be
The analysis under the NLRA is whether the activity was protected and concerted. Concerted means intended to elicit discussions with other employees. The NLRB has found in the past that postings to a group where some of the group are other employees is concerted. If I go down to the local paper and blurt out my pay to a journalist, it is not. This guy posted to his instagram account. The one part I am missing is how many of his instagram followers were other employees. The article merely says that most of his followers had nothing to do with Lacoste. Sounds like some of them did.
The Streisand Effect and Empathy
Let’s look at why this salesman posted it in the first place. Was he trying to hurt Lacoste? Was he unhappy? No and No. Where is the empathy, Lacoste? $2,448 in New York is not exactly luxury living, which is what he was highlighting. It was a commentary on living in New York. Now he has nothing.
Before he was fired, how many people knew about this? A few hundred? Probably people who weren’t blaming Lacoste at all for what he was commenting about. Now we all look at Lacoste as this big bad employer. How could they do this to that divorced dad, some will say. The publicity now will far outstrip anything that may have happened.
If you have never heard of the Streisand Effect, you need to read about it. The basic gist is that Barbara Streisand tried to suppress pictures of her home in Malibu. The efforts actually gave it more publicity. In fact, on the Wikipedia page explaining the term you can see her residence in all its glory. This is important to all lawyers who operate in this space (perhaps a future blog post here?). You need to balance the publicity today against the publicity tomorrow when weighing your options. Being a robo-lawyer is easy. Being a practical counsel is much more valuable and hard. I wonder if the lawyers in Lacoste’s HR department even talked to the social media team there. I bet they didn’t.
If I was at Lacoste I would expect to have my policies and agreements come under scrutiny by the NLRB before too long. While I don’t practice in New York, I think that the salesman has a good case to bring forward.
Social media is hard, folks. The first thing you should develop, even before processes and guidelines, is a thick skin. There are going to be things you don’t like. The next thing you should do is introduce your lawyers (all of them) to your social media team. Teach your lawyers the risks of mis-stepping in this space. And go dump your social media policies.