Posted by: johnocunningham | May 16, 2013

Social Media Policy – Legal Pitfalls

Until recently, it was accepted practice for lawyers to advise their clients to prepare a comprehensive social media policy for their employees, but recent actions by the National Labor Relations Board (“NLRB”) have turned that wisdom on its head, according to a recent article by David Rubin of Boston’s Nutter McClennen & Fish published in HR Magazine entitled, “Get Antisocial.”

Some of the NLRB’s actions defy common-sense, but they create lots of legal opportunities for disgruntled employees to sue their employers.

Rubin spells out, for example, the consequences of the following NLRB actions:

  • A consistent pattern of filing complaints against union and non-union companies that have social media policies, finding those policies implicitly to prohibit discussions or complaints about working conditions (a violation of the National Labor Relations Act, also known as the NLRA); and
  • Taking actions against companies that terminate employees for posting negative comments about their bosses or employers on the basis that social media policies prohibiting such publications are overbroad and unlawful under the NLRA, inhibiting protected speech.

Rubin, in his article, also offers helpful information about:

  • How to prevent employees from disclosing confidential material through social media;
  • How to deal with a situation involving alleged harassment via social media; and
  • How to deal with workers bad-mouthing the employer in social media.

Some lawyers still believe that social media policies can be crafted carefully to avoid many pitfalls associated with the NLRA, but Rubin’s article provides substantive food for thought on the crafting of policy related to the use of important and emerging forms of social technologies.


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