At the Speed of the Internet: It's Time to Update Your Social Media Prevention Policy

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"

are too broad.

(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.

Do You Know Where Your Glass Slipper Is?

Retaliation Prevention Policy Must-Have Provisions
I am looking forward to my upcoming NEW program for PIHRA's 2011 Annual Conference. It isn't too late to register. I am speaking on 2 topics: Social NOTworking and also Retaliation: Shoulda Put A Ring On It.

What I learned in researching the latter topic, is that Retaliation Prevention Policies have a Cinderella complex in most companies. The employers expect it to do all the work, by protecting it against retaliation claims, but they don't give it any glory. That means, that much like Cinderella's mean step mother expected her to keep things tidy, but didn't let her go to the ball, Retaliation Policies are usually buried deep inside a company's handbook, in two sentences at the end of the Harassment Prevention Policy. The company expects them to protect it from lawsuits, but doesn't highlight it as a stand alone policy, the way it should.

The fact is, now that Retaliation Lawsuits are the #1 Equal Employment Opportunity Commission claim, Cinderella need a new dress, new shoes and a white coach to take her to the ball. The bottom line is that Retaliation Prevention needs to take the center stage. In order for an employer to effectively prevent Retaliation claims and protect itself from Retaliation lawsuits, it needs a stand alone, detailed Retaliation Prevention Policy.

The Retaliation Prevention Policy should have the following iron-clad provisions:
1) It should make a stand alone commitment to a Retaliation-free workplace.
2) It should define Retaliation
3) It should give examples of Retaliatory conduct
4) It should set forth a complaint procedure
5) It should provide alternative means for making complaints
6) It should not promise confidentiality
7) It should set forth the consequences for retaliatory conduct

Here is my new Sample Retaliation Prevention Policy.* Hope to see you at the conference.

*This sample policy is not intended to be "ready for use." In addition, it is not to be construed as legal advice. I strongly encourage you to consult with a labor/employment attorney or contact me prior to using these forms within your company to ensure compliance.

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