Remember that one little bone that the National Labor Relations Board threw to employers on social media policies? The guidance was generally atrocious, but in the last memorandum of the Acting General Counsel a policy developed by Walmart was approved and attached.
I've suggested that employers use that Walmart policy as a go-by in developing their social media policies.
Well, now the Office of the Inspector General has determined that Acting General Counsel Lafe Solomon acted wrongfully in the Walmart matter because he held stock in Walmart that he had inherited from his mother, who died in July 2011.
Mr. Solomon, through his attorneys, denies any wrongdoing but admits that in hindsight he should have acted differently.
I am hardly an expert on financial disclosure rules, but from reading the report and the response it seems to me that Mr. Solomon committed an infraction equivalent to driving 60 in a 55 . . . at worst.
This seems to be confirmed by the "Remedy" in the Inspector General's report, which is, in essence, that Mr. Solomon go and sin no more.
The IG says that the investigation was prompted by a hotline complaint. According to the report, Mr. Solomon and his former Designated Agency Ethics Official, Gloria J. Joseph, had a "dysfunctional and adversarial" relationship, and that there was going to be an "assessment" of her division "because of matters that were brought to Mr. Solomon's attention that, if true, would evidence mismanagement and could create liability for the Agency." Ms. Joseph received a briefing on the assessment on January 20, 2012, and presented a rebuttal on February 1, 2012. Last month, Ms. Joseph was replaced in her position by the Deputy Associate General Counsel, Division of Enforcement Litigation, and her successor has announced a more-rigorous ethics program.
Keep Your Fingers Crossed
Although the IG report is critical of Mr. Solomon's handling of the Walmart case, there is nothing indicating that the Walmart opinion is substantively improper or must be withdrawn. So we can hope that despite this bump in the road the Walmart policy will continue to be one that employers can use to ensure compliance with the NLRB's unrealistic rules on social media policies.
Visit the Employment and Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and employment law firm Constangy, Brooks & Smith, LLP.
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