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Why Your Social Media Policy is Unlawful


I’ve updated my sample social media policy as a result of this conversation with Lisa Milam-Perez, who edits a blog by CCH Wolters Kluwer about US law and business practices, and who recently published a post about the latest social media guidance from the National Labor Relations Board, which says organizations need to be more specific in the language they use to govern the use of social media policy for US-based employees.


Under the National Labor Relations Act, US-based employees have a legal right to organize to improve their working conditions, even if that effort includes publicly criticizing their employer or discussing confidential information, such as a salaries, on social networks.  That’s right, restricting employees from discussing “confidential information” is too broad a requirement to pass muster.


In this podcast, Lisa discusses two memoranda that were recently released by the NLRB Acting General Counsel Lafe Solomon. The first one (OM 11-74) on August 18, 2011, profiles the NLRB’s resolution of 14 social media cases; a second memo (OM-12-31) on January 25, outlines more recent cases reviewed by his office.


As Lisa says in her blog post:


“An employer’s policies “should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees,” according to Solomon. Distilled to its essence: standard labor law principles apply here. That means that even if it does not expressly bar NLRA-protected activity, the NLRB would still find fault with a policy that:


  • “chills” employees from exercising their protected Section 7 rights;
  • significantly burdens an employee’s exercise of those rights;
  • was enacted in direct response to union activity; or
  • is applied in such a manner that it restricts the exercise of protected rights.”


If you haven’t updated you social media policy in a while and you need enforceable employee guidelines, now is the time. As I mentioned earlier, I’m in the process of updating my social media policy template so sign up for my email newsletter (upper right-column of this page) if you’d like a notification when it’s available.
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