Get ready to recycle. If your Social Media Policy was written prior to January 2012, it is now trash. According to the recent Operations Management Memo issued by the National Labor Relations Board (NLRB's) Acting General Counsel on January 24, 2012, social media policies that:- make broad prohibitions against "disparaging" managers
- make broad prohibitions against disclosing confidential information
- broadly prohibit employees from using the company logo
- require employees to use disclaimers, such as "these opinions do not reflect the opinions of my employer"
- use a "savings" clause, such as "this policy is not intended to interfere with an employee's rights under the National Labor Relations Act"
(Remember, the Memorandum gives guidance to employers in how to craft policies in a manner that avoids infringing on employee's National Labor Relations Act, Section 7 rights. The actual limits on an employer's ability to regulate employees' social media activity has yet to be developed or addressed by the NLRB or by the federal appellate courts that review its decisions.)
In my experience, that is almost every Social Media Policy that I have come across to date. Therefore, in order to comply with the new Acting General Counsel's Memorandum's recommendations, it is time to revise or redraft your company's Social Media Policy as a narrowly drafted policy. Even if your company only recently created a Social Media Policy in the past year or two, it is time for a new one. Welcome to the speed of the Internet.
After reading and analyzing the Memorandum and cases mentioned therein, I have applied the recommendations to my own Sample Social Media policy and the 2012 Newly Revised Proactive Lawsuit Prevention Sample Social Media Policy is here for your viewing pleasure.
Take a look at the recent Memorandum and my policy and let me know what you think.
Remember, this is a SAMPLE policy and should not be considered legal advice. It should be reviewed by your own employment counsel to ensure it is consistent with the laws of your state, your industry and your company mission and goals. It also must be consistent with the many policies referenced within it that are already part of your company handbook or procedures.
As an aside, I'm sure this will be a hot topic at the upcoming SHRM Legislative and Employment Law Update. On the first day, 3/5/12, I will be on a Social Media Panel of experts called "#theafterchat" after Eric B. Meyer's presentation, "Social Media for HR: Practical Guidance from a Generation Y Attorney." Hope to see you there.
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