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While preparing for my presentation today on social media policies, I came a
cross this great article by Seth Borden: Labor Disputes Arising out of Social Media.
Having organized labor in your workforce will complicate
the creation and enforcement of a social media policy. Potential unionizing
activities offer similar problems. Employers must consider traditional labor
law principles when creating and enforcing workplace social media policies.
The National Labor Relations Board has issued advice on
social media policies. Sears had a policy that prohibited "disparagement of
company's or competitors' products, services, executive leadership, employees,
strategy, and business prospects." The NLRB's Division of Advice concluded that
the charge against Sears should be dismissed. However, Mr. Borden concludes
that the current make-up of the NLRB is more labor friendly and could rule the
other way if again presented with a similar policy.
The challenges of drafting a social media policy will be
to carry the existing law involving email and surveillance limitations to the
current age of web publishing. This is not a unique challenge. You can see the
same challenge with FINRA in the financial services industry.
If you have organized labor in your workforce and are concerned
about social media use by your employees you should spend a few minutes and
read Borden's article.
Seth Borden is a partner in the New York office of
McKenna Long & Aldridge and a member of the firm's labor and employment
practice. He co-writes the firm's blog, Labor Relations
Today, covering developments in labor law.
additional commentary on developments in compliance and ethics, visit Compliance Building,
a blog hosted by Doug Cornelius.