see attachedTitle social Media in the work placeWhat is the .docx

see attached
Title social Media in the work place
What is the advanges and disadvanges of social media in the
work place
the effect of social media in the workplace
10 The Enterprise Feb. 1-7,2010
Social media and the workplace Manners and your bottom line
In some social circles,if you aren't "tweeting,"
you're considered disconnected or entirely out of
touch. Certainly, it seems that social networks like
Twitter, Facebook, Linkedin and other Web 2.0
environments have eclipsed comer bars, coffee
houses and country clubs as the common gathering
places for some groups. Take, for example.
Generation Y. By 2010, Gen Y will outnumber
their Baby Boomer predecessors, and 96 percent of
them have joined a social network. What's more, if
Facebook were a country, it would be the world's
fourth largest nation, with 300 million "citizens."
But individuals aren't the only ones socializing
online. Companies are finding a voice within
social networks too. Just a short decade
ago companies were creating inviting Web
sites to allow their constituents to visit
them. Now, many courageous companies
are reaching outside their firewalls
and enlisting social media forums, like

Twitter and Facebook, to actively engage
and directly communicate with their
constituents. Others are generating original
content and encouraging discussion about
their products and services through blogs
and chat rooms on their Web sites. .
But despite the relatively widespread adoption
of social media among companies for purposes
of marketing and PR, many businesses are still
struggling with the " i f and "how to" of allowing
access to social media within the workplace. In
fact, one recent study reported that 54 percent of
companies prohibit any access to social media
networks on the job, and another 19 percent of
companies permit only limited access solely for
business purposes. Why?
Businesses and their management teams
have valid concerns about opening the door,
or firewalls as the case may be, to social media,
but proponents for employees' open access have
equally compelling arguments to counter those
concerns. For example, business leaders worry that
they'll see a decrease in productivity if employees
are allowed to access their Twitter or Facebook
accounts from their office, but others will argue that
access to social media networks actually promotes
productivity because workers can conduct more
thorough research and interact with coworkers and
customers more effectively. Proponents also point
out that workers who are able to tweet during work
hours are more likely to respond to work e-mails or
check voicemail during non-work hours.
Of course, many managers voice serious

concerns about the potential for employees to leak
confidential company information, spread negative
comments about the company or conduct illegal
online activity from the workplace. Certainly these
are real issues for company leaders to consider.
Given the prevalence of social media today,
however, it is beginning to feel a bit like plugging
a dike with your finger. How long can companies
hope to persevere against such a large, ubiquitous
presence on the other side? After all, it seems
somewhat unfeasible for a company to circumvent
any and all internet access during work hours. Just
count the number of iPhones, Blackberries and
personal laptops with wireless connectivity in use
by employees today.
For some companies, it may be well-timed
and more practical to consider how to police rather
than prevent access to social media. Interestingly,
the percentage of companies that do not permit any
access to social media correlates directly with the
percentage of companies that have not established
policies to deal with the Web 2.0 grounds well.
However, a well-defined and actively-enforced
social media policy can help promote the
productive use of social media at work and prevent
most infractions. Below are a few tips for setting a
John Allen
social media policy for your company.
• Establish parameters that fit your company,
your business and your employees. Some supporters
of social media propose unrestricted access, but that
seems a bit reckless. This isn't a "one size fits all"

issue, so it is impractical to think that a universal
policy will work. One company's business may
dictate more rigid rules, while another's may be
able to tolerate more liberal access. Establish a
policy that fits your business by setting parameters
about which sites are and are not permitted and
how you expect employees to use the sites during
work hours. Don't automatically block access to
any site where customers may be talking
about your products or services out of
fear for what an employee might say.
Very often employees can be your best
promoters and defenders there.
• Communicate your policy.
Make it clear what is and is not permitted
with regard to accessing social media
from the workplace. Also, because for
some there is an addictive element to
social media, help employees manage
their time effectively by providing
guidelines for the amount of time an employee
might reasonably spend with Web 2.0 tools.
• Train employees to use social media
effectively and responsibly. Many of your
employees are probably already familiar with
certain social media networks, but that doesn't
mean they know how to use those networks for
business purposes or that they fully appreciate the
potential ramifications of misusing social media.
For their own benefit, and for the benefit of your
business, train your employees to exploit the
advantages and avoid the pitfalls of social media.

Then trust that they'll do the right thing.
• Actively enforce your policy. While
companies should always start from a position
of trust, a social media policy, as is true with any
employee policy, is meaningless if there are no
consequences for infractions.
• Measure performance beyond productivity.
A top concern for companies considering
employees' access to social networks involves
productivity. It is no surprise that managers worry
that employees will be so distracted by tweets and
MySpace messages throughout the day that they
will get no real work accomplished. It may surprise
you, however, that studies suggest the opposite is
true. Research results indicate that every hour an
employee spends at work on non-work related
activities is compensated for by an hour spent
away from work on work-related activities. At
the end of the day, then, it makes more sense for
companies to measure an employees' performance
against pre-established goals and job criteria rather
than a more arbitrary productivity quotient.
Whatever your personal position, Linkedin or
not, you have to acknowledge that social media is,
at least for the moment, a phenomena in our society
that is fundamentally transforming how people
interact, and thus has the potential to significantly
impact how we work as well. Getting on top of this
tsunami-strength wave with firm but fair policies
can help ensure your company has a smooth ride
rather than gets caught in its wake.
John Allen is president and COO of G&A Partners,

a Texas-based HR and administrative services
company that manages human resources, benefits,
payroll, accounting and risk management for grow-
ing businesses. Allen grew up in Salt Lake City and
later returned to attend the University of Utah and
Brigham Young University. The local office of G&A
Partners can be reached at (801 ) 302-8930.
Most business people can
readily accept that soft skills
like proper business etiquette are
increasingly important in creating
a culture of respect and service for
clients. These same business people,
however, hesitate in believing that
these same soft skills ultimately
affect the bottom line.
Is there a cost to rude
behavior? Most definitely! Surveys
conducted by North American
etiquette companies indicate that 80
percent of people polled reported an
increase in rudeness in business and
that when they encounter
rudeness, 58 percent of them
will immediately take their
businesselsewhereregardless
of cost or inconvenience.
The study (Columbia S.C.,
2007) also concluded that
most people in business
situations have no idea that
their behavior is considered
rude, or how negative the

impact is to their productivity or
professional image.
Some of the rudest behaviors
reported by respondents to the
survey were:
1. Telephone rudeness, not
returning calls and poor telephone
skills.
2. Disrespect for people's
time.
3. Abrupt tone of voice and
impolite language.
4. Conversations that become
too personal in business situations.
5. Lack of preparation.
6. Interruptions, cutting
off conversations or dismissing
discussions.
Rudeness costs businesses
a great deal of time and money.
Accordingly, to compete and
maintain profitability in modem
business arenas, professionals need
to understand and implement current
guidelines for communicating
in the workplace. The Columbia
study cited above also found that
a sales-oriented business spent an

average of 29 percent of its time
resolving problems, conñict and
miscommunication with employees
or clients. Multiply 29 percent by
the cost of payroll and the effect
on the bottom line is staggering. It
is vital that regardless of what your
business is, you can answer and then
act on commonly asked questions
such as:
1. How do I get past the
"gatekeeper" to see key clients?
How do we maintain our repeat
client list?
2. How do we ensure that
our clients feel like people and not
"numbers?"
3. How can we make every
personal touch-point positive and
memorable?
4. How can we create a
company culture where everyone
feels valued?
5. How can we encourage
employees to treat each other with
the same respect we want them to
Ellen Reddick
show clients?
6. What are our guidelines for

all forms of communications? What
are the rules for telephone, e-mail,
cell phone and voicemail etiquette?
7. How do I ensure I am leaving
a positive first impression? What is
my body language saying? How are
my listening skills?
8. What is the secret to
"professional polish?"
9.Whataretheproper guidelines
for professional behavior?
10. Do people really notice how
I conduct myself over a business
lunch or at a networking
reception?
Common sense,
maybe. Unfortunately,
common sense does not
always prevail and it is
very easy to fall into bad
habits. Too-casual Fridays,
too lazy to come out from
~ ~ " behind the desk to shake
hands with a client, too
quick to let the call go to voicemail.
These things matter! There is always
someone watching. Watching and

waiting to find a weakness, an upper
hand.
When all else is equal between
competitors, the more courteous
and professional communicator
will prevail. Thie applicant
who knowingly or otherwise
communicates confidence, sincerity
and a respectful attitude through
their posture, eye contact or helpful
gestures will come out ahead.
We are all selling something, our
services, ourselves, someone else's
products. In any case, successful
"sales" in business correspond
directly to effective and professional
behavior, which is increasingly
important in our competitive,
technological age. Understanding the
mies, or manners, for social behavior
gives professionals an edge over
the competition. Every behavior,
from first impressions to telephone
and e-mail communications, can
significantly effect the bottom line.
Taking the time to think before we
act will help us develop stronger
relationships, understand how we
are expected to behave in social
situations and give us the confidence
to handle ourselves properly when
dealing with clients and associates.
In business, good manners translate
to improved communication skills,

exceptioneil customer service and a
better bottom line.
There are simple professional
behaviors that business people can
regularly employ to ensure that
others perceive them as thoughtful,
courteous professionals:
1. Remember, "attitude" is that
something you usually cannot put
your finger on when you are making
judgments during first impressions.
People see right through smiles
and words that are not reinforced
by sincerity in body language and
posture.
2. It is far more harmful to
see REDDICK page 14
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with additional resources, including sam-
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7 rules for using social media at work
TAMING TECHNOLOGY
Social media’s popularity has sky-
rocketed in recent years, and it will
become more entrenched in our daily
personal and work lives. When you use
social media at work, follow these rules:
1. Know what you can share.
Learn from your supervisor what infor-
mation is proprietary and confidential.

If you post something that you don’t
have permission to share, you risk los-
ing your job and, in some cases, facing
legal consequences.
2. Don’t ever post something that
you wouldn’t say to someone’s face
or that you wouldn’t want your orga-
nization to see.
3. Keep your cool. If someone
insults you or your organization, it’s
tempting to fire back a quick remark,
leading you to make a rude comment
for everyone to see. Always stay calm
and be considerate when you reply.
4. Don’t feel obligated to “Friend”
or “Follow” anyone, including co-
workers and bosses. Simply explain
that you want to keep your work life
separate from your personal life and
politely decline the request.
5. Be honest. Never post lies or
inflammatory comments about the
organization, co-workers, customers,
competitors and so on. If you make a
mistake, admit it and quickly make a
correction.
6. Don’t insult the competition.
Anything you say has to be substanti-
ated, but even if you have proof that a
competitor has shady practices or

faulty products, don’t take digs at the
organization.
7. Provide credit for any ideas you
get from other sources, linking back
to the original source. Even if you just
received an idea from somewhere
else, give that person or source a nod.
— Adapted from Polite, Professional, Promotable: Etiquette
for Today’s Workplace. To learn more about this new training
tool, visit www.WorkplaceTrainingCenter.com.
Set up for decision
Meet at a wide rectangular table
when your group needs to make a deci-
sion. When groups sit at a round table,
no one appears to have the position of
authority, and they have trouble reach-
ing decisions.
— Adapted from “The Shape of the Conference Table Equals
Success or Failure,” Ruth Haag, Getting Along in the Office,
www.ruthhaag.com.
JOIN THE ONLINE
CONVERSATION
Tell us about your communication
pet peeves and best practices. Visit the
Nitpickers’ Nook blog (http://nitpickers
nook.com) to share advice for writing
clearly, speaking effectively and listen-
ing carefully.
A better response
to criticism

Even if someone offers unwarranted
criticism, don’t react emotionally. Instead,
focus on understanding the reasons
behind the person’s complaints. Ask
questions to ensure that you fully under-
stand what the person is asking you to
correct. Then tell the person “Thanks for
bringing this to my attention.”
Later, when you are calmer and
you’ve had a chance to process the
person’s feedback, determine if the
comments have any merit. Then decide
what changes you need to make.
— Adapted from “The Most Important Rule for Receiving
Feedback,” Al Pittampalli, Modern Meeting Standard,
http://modernmeetingstandard.com.
QUICK TIP
Forge a stronger link with the
connections you want to make on
LinkedIn. Take the time to add a
personal message to the standard
invitation. That shows you care
about the other person.
— Adapted from “Bringing Back Professional
Courtesy,” Management Excellence by Art Petty,
http://artpetty.com.
Copyright of Communication Briefings is the property of
Briefings Media Group, LLC and its content may not

be copied or emailed to multiple sites or posted to a listserv
Social Media
in the Workplace
article by Diana Bauer, Senior Partner
at Carson Boxberger LLP
email: [email protected]
phone: (260) 423-9411
website: carsonboxberger.com
=acebook - 850 million users
Twitter - 300 million users
.inkedin - 135 million users
:hances are, your employees use some
3r all of these forms of social media.
>ocial media's rapid evolution presents
great business value, but if can also carry
Dotenfial piffolls if improperly used by
imployees.
Regulating social media in fhe v/orkplace
sresents many challenges, because the
afj is still developing. This article presents
Dractical considerations for businesses

:onfemplating social media guidelines
3nd poiicies.
vlany employee handbooks already
:ontain poiicies forbidding the disclosure
3f confidential or proprietary business
nformation and trade secrets. Those
Dolicies apply vj'iiU equal force to social
nedia. This is of particular importance tor
:ompanies subject to regulations and
irofessionai confidenfiaiity obligations like
he banking and medical sectors.
Harassment, bullying and retaliation are
t permitted in the v/orkplace and
Tiost companies already have policies
egarding conduct and respect. Those
policies aiso apply to employee use of
;ocial media.
Remind empioyees to be respecttui in
heir sociai media postings. Profane,
Dbscene or disparaging comments
;houid be prohibited. One commentator
;uggests a "mothers and newspapers
ule." Would you want your mother to
ead what you posted? Would you feel
comfortable reading what you wrofe in
the local nev/spaper? If the ansvî er is no,
then the post or tweet is inappropriate.
Remind fhe employee thaf he or she is
responsible for anyfhing posted that uses

a company email address and/or which
can be traced back to the company's
domain. All actions in the social media
reaim are pubiie and employees will be
held accountable for their activities.
There are many questions regarding
whether an employer can control use
of social media outside the v/orkplace.
These are difficult questions fo answer, but
generally speaking, employees should be
reminded fhat they are responsible for fhe
content of anything they post publicly,
even on their own time.
Despite guideiines and palicies,
employees may still post negative
comments or disparaging remarks
about their employer. Guideiines and
policies must remain mindful of interfering
with employee-protected speech. For
example, last year the National Labor
Relations Board (NLRB) ruled against
an employer who fired an employee
for complaining on social media sites
about workplace conditions during non-
work hours. The NLRB stated that the
employer's conduct interfered wifh fhe
employee's rights under federal iaw fo
discuss wages and working conditions
v/ith covi/orkers.
The lavi/ is stiil developing. Discuss
guidelines and policies with your
company attorney before disseminating
fo employees. ^

A Resource for Women
Copyright of Business People is the property of Michiana
Business Publications, Inc. and its content may not be
a c c o u n t i n g t o d a y . c o m
It can be
a useful
business tool,
but can also
become a huge
distraction and
efficiency-eater
in the
workplace.
August Aquila is a well-known consultant,
retreat facilitator and author. Reach him
at (952) 9 30-1295 or [email protected]
visors.com . Angie Grissom is president of
The Rainmaker Companies, which exclu-
sively serves accounting firms. Reach her
at (615) 3 73-9880 or [email protected]

companies.com .
practiceresources M a y 2 0 1 5 | a c c o u n t i n g t o d a y 4
5
1̂C shesaid
BY AUGUST AQUILA AND ANGIE GRISSOM
Social media:
Waste of time or useful tool?
S
ocial m edia is a hot topic o f discussion
fo r businesses across the nation, a n d fo r
accounting fir m s in particular as they
look fo r ways to capitalize on the unprecedent-
ed opportunities it presents fo r com m unicat-
ing w ith clients a n d prospects, w hile a t the
sam e tim e m a kin g sure th a t it isn't draw ing
em ployees a w a y fr o m their w ork or, worse,
exposing the fir m to online security a n d rep-
utational risks.
He said: While social media helps us com-
municate and keep up with current events,
it can also be a huge distraction in the work-
place. Long gone are the days when the only
means of distracting us from work were our
office phones. Now social media outlets like
Facebook, Twitter, Instagram and Snap Chat
are just a few of the ways people can break
away, and this list will only continue to grow.
It's certainly a problem because the behavior,
if it becomes excessive, cuts into productivity.
I’ve heard a lot of partners say they want to

ban all use of social media completely during
work hours.
She said: Social m edia has changed the
way people communicate and do business.
Our social norm s in the work place are shift-
ing. A few years ago it was considered bad
form to pull out your phone during a business
meeting. But today I can sit around a table
and see most of my colleagues with a digital
device near or in their hand. From updating
a calendar, taking a picture of notes from a
meeting, or posting an update on Facebook
or Twitter, technology and social m edia in
the business world is becoming an everyday
practice and a proven way to grow business.
Technology is only expanding and growing in
the capacity of how we can use it in. To stay
ahead, businesses need to stay current with
social media and technology trends.
He said: But when does distraction impact
the productivity and perhaps profitability of
a firm? You can't give 100 percent attention
to the m eeting if you are doing som ething
on your phone, tablet or computer. And it's
also hard to remain focused on any project
with the constant ding from your phone or
com puter about a new update or message.
I realize that you can’t lock yourself away for
eight to 10 hours and not have any contact
with family or friends — that's not realistic.
But social media has a prominent, enticing
presence, so that people are constantly get-
ting pulled away. And while social media can

be great for business growth, it is hard for firm
leaders to be sure that their employees are
using these platforms in an appropriate and
professional way.
She said: Social media has a proven track
record for helping businesses grow. Firm
leaders should really consider the statistics
before banning it all together. Social media is
the fastest-growing tool for any customer to
find information they need and fast. Statistics
show that 97 percent of all consumers search
for local businesses online and 82 percent
of people trust what they see on social m e-
dia and are more likely to recom m end that
service to their friends. They also trust rec-
om m endations from their friends they see
on social m edia sites more than what they
would find doing their own online research.
But you and I both know that people in the
workplace are not on social media sites sole-
ly to promote the business. The importance
is getting your employees to see the impact
social media can have on their business and
how to use each platform to its full potential.
He said: Social media was originally creat-
ed as a social outlet. People join various out-
lets as a means to communicate with family
and friends. But it has grown and expanded
in the way people and businesses can and
should be using it. The goal now for firms is
to teach their employees about these chang-
es and try to add professional social media

practices into work routines. These platforms
can not only help grow a firm but also one's
personal and professional career goals. There
is an educational piece that is missing in busi-
nesses today. People assum e that because
everyone is on social media that they know
all the ways to use it, and that just isn’t true.
It’s critical to educate everyone about social
media outlets and how they can be used in a
business context.
She said: Firms should definitely be pro-
viding training on ways to use social media
— from knowing howto use it, tips and tricks
within a site that are helpful for them and
the business, and tim e m anagem ent tools.
These are some great training topics to start
with. You can't micro-manage the workplace,
so you need to provide some guidelines on
personal use of social m edia during the day
as well.
He said: It is also im portant to set guide-
lines for the firm. Firms can be held liable for
the actions of their employees. Employees
must know the consequences of not follow-
ing any social media guidelines.
They said: There is no doubt that social
media is both a blessing and a curse. It can be
a useful business tool, but can also become
a huge distraction and efficiency-eater in the
workplace. It's important not to m icrom an-
age the issue, but instead train everyone in
the workplace about ways they can improve
their social m edia activities to benefit not

only themselves but the firm, and to set clear
guidelines for any use. AT
mailto:[email protected]
Copyright of Accounting Today is the property of SourceMedia,
Inc. and its content may not
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without the copyright holder's
express written permission. However, users may print,
download, or email articles for
individual use.
by John E. Lyncheski, Esq., FACHCA
Social media in the workplace
Do you know, need to know, what your employees are tweeting?
D
o you have any clue as to how
many of your employees "tweet"?
Do you know how many employ-
ees have a Facebook page? Who
among your employees is on
Linkedln? Plaxo? MyS-
pace? Classmates?
Or, active on any
of the other new

instant messag-
ing social me-
dia sites that
are popping
up almost
every other
week? Do
you have any idea how often your employees
visit these sites while at work? How many
of your workers have a blog? Do you have
any appreciation of the extent to which
your employees tweet or post about
their job and their work? Have you
ever "posted on a wall" or visited
one of your employee's walls?
Should you visit these sites
to learn more about
your employees?
What should you
do ifyou visit an em-
ployee's social media site and
learn more than you should or information
that should lead to termination?
Many of you will answer that you have
not visited a new media site, and some of
you may even ask "Why should I care?"
Unfortunately, the emergence of social
media as a widely used communication
tool is fostering unintended consequences
in the workplace which employers can no
longer afford to ignore. Long-term care
(LTC) employers are far from immune to
these consequences and, in many respects,
are more vulnerable to the negative impact

of social media because of the nature of our
core business—providing healthcare-related
services to the infirm and elderly in a highly
regulated environment.
Social media at work
Facebook has graduated from its college
roots and is now accessed by more than
500 million users. Linkedln was originally
intended to connect employers and job
seekers, but has, intentionally or uninten-
tionally, broadened its scope and now has
more than 75 million "members." Every-
body that's anybody tweets on Twit-
ter. It's the in thing
to do. A recent
Cisco study
revealed that
t h a t more
t h a n
25% of employees admit to having changed
the settings on their workplace computers to
circumvent employer commtmication poli-
cies. According to Cisco, one of the leading
U.S. network providers, almost one-half of
all employees age 30 and under have visited
social media sites on employer time, some
for more than an hour per day on meaning-
less interactive digital games. Surprisingly,
almost one-third of them claimed that they

were permitted to do so. Perhaps most strik-
ingly from the information compiled by
Cisco, is the fact that, in the face of all of
this data, only about 1 in 5 employers have
a policy governing social media access and
usage. Suffice it to say that access to social
media by employees is not going to wane
anytime soon and that, much to the contrary,
new media use is going to increase beyond
any reasonable expectations.
As an employer, why worry? Aside from
the obvious productivity, efficiency, and at-
tention issues posed by access to these new
media while at work, there are several im-
portant human resource and legal concerns
that must be considered. From a human
resource and employee relations perspective,
employers must decide where to strike the
balance between a congenial workplace that
permits access to social media collaboration
sites and one that protects confidentiality,
security, and employer legal interests.
The legal concerns cover as broad a
range as one can imagine. They span
from the ability of an adverse party
in a lawsuit to "discover" and
use yotir employees' per-
sonal social media post-
ings to what you, as an
employer, can do with information

you learn about a candidate or an employee
from a social media posting to the extent to
which you, as an employer, can be held "li-
able" for certain employee postings whether
authorized or not. Significant legal issues
arise potentially under antidiscrimination
statutes, CINA, the Fair Credit Report-
ing Act, the Federal Computer Fraud and
Abuse Act, the Stored Communications
Act, The Computer Related Offenses Act,
HIPAA, and Federal Trade Commission
(FTC) regulations. LTC employers are all
well aware of the constraints of HI PA A, but
many LTC employers have not focused on
the potential HIPAA violations which can
32 «OCTOBER 2010 w w w LTLMAGAZINE.COM
arise on the now casual social media. They
can stem from as simple a scenario as an em-
ployee complaining about his/her workday
and the conditions of the patients/residents
cared for during the course of his/her shift
and possibly even directly or indirectly, the
identity of those residents. It simply doesn't
take much for there to be an inappropriate
disclosure of PHI (protected health informa-
tion) that runs afoul of HIPAA.
Much less appreciated are the restraints
and penalties of FTC regulations as they
apply to "new media, " "endorsements, " and
comments about a related party's "product. "
The FTC's regulations on testimonials and

endorsements in advertising in "new media"
make not only the "endorser," but the em-
ployer liable for failing to disclose "material
connections" between and among "endors-
ers" and the products and companies about
which they comment. The liability attaches
to the employer regardless of whether the
"endorsement" was authorized or known
beforehand. The FTC is particularly vigilant
with respect to false and unsubstantiated
"endorsements." The FTC regulations also
impose an affirmative obligation on compa-
nies to "maintain internal procedures" that
will prevent violations of the regulations.
The FTC regtilations should not be taken
lightly and the penalties are stiff, llie fact
that we are primarily in a service business
is of no consequence to the FTC. A policy
governing use of social media while at work
and restraining employees from work-related
communications on social media sites at
all times is a must. LTC employers should
expect that "customers" and "prospective
customers" will search the Internet for
information and feedback, including your
employees' social media postings. The policy
needs to maintain the potential benefits of
social networking, but, at the same time,
minimize the risks and the "threats" of
social media use and abuse. At a minimum,
compliance with FTC guidelines requires
that you "maintain internal procedures" ad-
dressing limits and controlling "new media "

endorsements. HIPAA adds yet another
dimension and, while most long-term care
employees are adequately schooled in the
limitations imposed by HIPAA, it is unlikely
that this training created an adequate aware-
ness of how the "casual" communications
about work on a social media site can step
over the line. While a social media policy
should be specific to your facility and to
your culture, there are several elements
which should be common to any and every
policy on this subject.
Develop social media policy
First and, perhaps, foremost, the facility
policy should make clear to employees that
it retains the right to monitor all use of its
technology and any communications made
or received on employer equipment, from
office-based hardware to employer-provided
cell phones, BlackBerrys, and other devices.
Act affirmatively and clearly to remove any
expectation of privacy and, unless you are a
government-run entity, you have every right
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34 »OCTOBER 2010 WWW.LTLMAGAZINE.COM

to do so. Next, according to a fairly recent
decision of the National Labor Relations
Board, you have the ability to, if you so
choose, i mpose a complete ban on employee
use of employer technology for personal or
non-business commtmications, provided the
ban is not enforced discriminatorily. It's up
to you to decide how restrictive your policy
will be in this regard, but even ¡f you choose
less than a complete ban, as many will, you
must be mindful of the FTC guidelines
and of HIPAA and build them specifically
into your social media policy. Furthermore,
both the I-TC and HIPAA require that
your policy reach beyond the confines of
your workplace and address use of personal
equipment, personal media sites, on personal
time for any communication related to
work or work-related matters, particularly
anything having to do with residents or the
provision of resident care. You must require
employees to obtain approval for any post-
ings that in any way involve your facility,
your services, or your residents. Shift liability
to employees for postings on their sites that
are not at management's request. Make
sure that employees understand that they
are prohibited from disclosing any and all
proprietary, confidential, and "intellectual
property" information. Absolutely ensure
that employees disclose their relationship to
you if they post information which promotes,

endorses, or dishes yotir "products" and
services in any way, directly or indirectly;
their employee status must be definitively
disclosed. Make sure that employees under-
stand that they will be held accountable for
any social media behavior that steps over the
line in terms of laws, rules, and regulations,
particularly those of the FTG. Employees
must also understand that "anonymous"
postings will not escape FTG scrutiny.
Deceptive, misleading, and false postings
mustalsobeprohibited. Finally, and specifi-
cally, the policy must prohibit disclosure of
any and all confidential, financial, sensitive,
trade secret, resident, employee, or corporate
information.
Summary
There are many advantages and benefits from
today's new social media, but there are many
pitfalls as well, particularly for LTC facilities
when they are "wearing their employer hat."
A well-articulated and widely communicated
social media policy is a must and employers
would be wise to designate an individual
within the organization to not only "police"
social media usage, but to be available and
responsive to employees when social media
issues arise, I
John E, Lyncheski is a Director/Shareholder in the
Pittsburgh-based firm of Coben & Grigsby P.C, He
cbairs tbe firm's bealtbcare group and tbe firm's
Florida labor and employment practice, Mr, Lyncbeski

is a Fellow in tbe American College of Healtbcare
Administrators (ACHCA), is on tbe Board of Directors
of tbe American Healtb Lawyers Association, tbe
Florida Assisted Living Association, and tbe Florida
Cbapter of tbe ACHCA, among otbers. Contact bim at
[email protected]
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www,ltlmagazine,com/readerservice
WWW.LTLMAGAZINE.COM LONG-TERM LIVING • 35
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Social Media in the Workplace
Linky Trott

Abstract
There is no doubt that most businesses use social media and
collaboration tools
such as social business software of some kind or another and
embrace the
benefits that these can bring. In a 2009 a global Manpower
survey, businesses
identified the main benefits of using social media as; brand
building, fostering
collaboration and communication, as way of recruiting new
talent, improving
employee engagement and driving innovation.
But there are also risks. This article examines the main legal
risks that can arise
in the workplace as between a business and its workforce and
considers how
the Courts and Tribunals are responding to social media issues
arising in the
workplace.
Introduction

If a business has a concern about the use of social media, a
blanket ban is
clearly an option. Whilst that may feel like the most simple
approach, it is
unlikely to be practical. Even as far back as 2009, the
Manpower survey
observed that “the younger generation consider social media
tools as a
Biography
Linky Trott is a Partner at law firm, Edwin Coe. She provides
day to day advice on a
comprehensive range of employment issues for established
corporate clients including
the negotiation and provision of strategic advice on severance
arrangements, bullying
and harassment claims, the management of ill health and
capability dismissals, dealing
with allegations of discrimination, collective redundancies and
Board disputes.
Linky also undertakes High Court injunctive work to enforce or
resist post termination
restraints and the protection of confidential information.

Working with Senior
Executives and Board Directors, Linky regularly advises and
helps to negotiate terms
of Executive service agreements to include bonus schemes,
guaranteed payments and
share options in regulated and non regulated industries. She has
provided strategic
advice on a number of successful team moves within the
communications and financial
sector acting for both the poaching competitor and the
individuals being approached.
Linky also advises on data protection, commercial agents and
the Conduct of
Employment Businesses and Employment Agency issues.
Linky sits on the Employment Committee of the Law Society
and is Chair on the In and
Around Covent Garden Business Forum. She is also a member
of the Employment
Lawyers Association, and has appeared on ITV and Channel 4
commenting on
Employment Law issues arising in the news and is a regular
speaker at conferences on
employment issues.

Linky Trott
Partner
Edwin Coe
Keywords Risk, Rewards, Safeguards, Recruitment, Human
Rights Act 1998
Paper type Opinion
23 Credit Control
Legal Aspects
prerequisite for doing business” and with generation Y having
been in the
workplace for around ten years, it is unlikely that staff will
tolerate a blanket ban.
Time wasters
Employers can of course monitor an employee’s use of social
media in the
workplace (subject to telling them that will happen) and if there
is excessive use,

then they can be disciplined as long as the extent of any
permitted use is clearly
defined in a relevant policy. That is well illustrated by the case
of Grant & Ross
v Mitie Property Services (UK) Limited. In that case, two
sisters were dismissed
from their employment for accessing non work related internet
sites during
working hours. They brought proceedings for unfair dismissal
and won. The
factors the Tribunal considered relevant were:
This case illustrates the importance of a business having an
internet use policy
that is well thought out and sensibly implemented and acts as a
word of caution
for employers who follow the letter rather than the substance of
the policy.
Protecting confidential information
One of the greatest dangers with social networking sites in
relation to the
disclosure of confidential information is that employees forget
how ‘public’

certain platforms are. In addition, the very nature of many sites
is to encourage
participation in the ‘on line’ conversation, where an exchange
of views or
information can feel like a private discussion but is in fact
available for all to see.
In the circumstances, there is great scope for the accidental
disclosure of
confidential information.
One hears of lawyers taking to twitter to comment on how
exciting it is to work
on the ‘vodafone’ deal (a clear breach of not only
confidentiality but also possible
regulatory requirements about announcements of deals to the
market etc) or of
employees getting drunk on a Friday night and at 2 am
commenting on blogs
confirming sensitive information relating to their employer.
The only thing an
employer can do to prevent these sorts of breaches is to educate
its workforce.
There are however some breaches of confidentiality that
employers have not

even thought of but which are placing them at risk in a number
of ways.
Consider for example, a salesman who has his own personal
‘LinkedIn’ account
who then ‘links in’ with most of the customers he meets through
his work. These
1.
2.
3.
The Company’s internet use policy said that it could only be
used for
personal use outside “core working hours” but then didn’t
define what that
was;
The employer was unable to demonstrate that the internet use
had
affected their work performance; and

The websites visited were of an innocent nature.
24 Credit Control
Legal Aspects
are customers of the business and the business may have agreed
to keep the
identity of its clients confidential for any number of good
commercial reasons.
Does the salesman know this? Does the business want other
customers to
know the identity of other customers of the business? Is this
appropriate or
desirable? The answer may be yes but the point is that any
business should ask
itself such questions as it develops its social media policy so
that it is aware of
the risks and has either discounted them or addressed them.
Protecting client relationships and the enforcement of post
termination

restrictive covenants
I have referred above to the circumstance where a salesman has
his own
LinkedIn account and links in with the clients of his employer’s
business over the
course of his employment. But what impact does this have on
any post
employment restrictive covenants which might be in his
contract?
If a particular salesman leaves to join a competitor and updates
his ‘status’ on
his LinkedIn account to say that he is now working for X
company, it is usual
(depending on settings) for all of those in his contacts list
(including those clients
of his former employer) to get a notification of his status update
with the details
of where he can now be contacted. Is that a breach of any post
termination
restrictions that prevent him from soliciting clients of his old
employer?
There is a very strong argument that, yes it is. There is no case
on this point to

date, but it is hard to see how a status update could be
distinguished from an old
fashioned email to those clients of the former employer, which
would be a
breach of such a restriction.
In the case of Hays Specialist Recruitment v Mark Ions and
Exclusive Human
Resources Limited, Hays successfully applied to the court for
the disclosure of
all business contacts in Mr Ions’ LinkedIn account. Mr Ions
had worked for Hays
as a recruitment consultant. He gave notice to Hays and started
to compete
with them within a matter of days of leaving. Hays said it
maintained a
confidential database of all of its clients and candidates and
alleged that after Mr
Ions had decided to leave in order to set up in competition, he
began a
campaign to migrate those client contacts to his LinkedIn
account whilst he was
still employed by Hays by inviting client and candidates to link
in with him at his
personal LinkedIn account.

The court accepted the evidence of Hays and found on an
interim application for
an injunction (so not after a full trial) that on the face of it, his
conduct was a
misuse of Hay’s confidential information during employment
and his use of those
client contacts in his competing business was a breach of his
restrictive
covenants.
This case is good news for employers as it illustrates that the
courts are likely to
approach modern social networking mediums in the light of well
established
principles governing the protection of confidential information
and the
25 Credit Control
Legal Aspects
enforcement of post termination restrictive covenants but

enforcement will
become increasingly challenging.
Employers can increase their odds on being able to effectively
protect their
confidential information and ability to enforce restrictive
covenants by having
clear internal policies about what is and what is not confidential
information and
by including non dealing post termination restrictions with
former clients so that
solicitation does not need to be proved.
Protecting reputation
The cases that hit the headlines are the ones that usually involve
a business
trying to protect its reputation. Whilst the management of the
reputation of the
business is a concern for employers, the legal risks in
addressing matters can
be complex.
Where the comments on websites made by employees are
directly related to
work and/or colleagues, it is easy to see why a dismissal of the

employee would
clearly be within the “band of reasonable responses” which is
the test a Tribunal
would apply when deciding if a dismissal is fair or not. These
cases also make
you wonder what the employee was thinking at the time! An
example of such a
case is when a high street store dismissed one of its employees
for posting onto
a social networking site, “I work at [name of store] and can’t
wait to leave
because it’s s&*t”. The result was dismissal for gross
misconduct. It was clear
that this was a publication of an offensive comment about the
business itself and
fundamentally undermined trust and confidence between the
employer and the
employee.
Another case in point is that of Taylor v Somerfield which is an
unreported case
from July 2007. The Claimant had been dismissed for bringing
the company into
disrepute when he posted video footage on YouTube which had
been filmed on

a mobile phone, showing two colleagues hitting each other with
plastic bags and
generally horsing around the Somerfield. The employer did not
dismiss for
horsing around in the warehouse (presumably because it was
during a legitimate
break and was of an innocent nature) but rather for posting the
video of it on
YouTube thereby bringing the business into disrepute. The
Employee who was
dismissed, issued proceedings for unfair dismissal and the
Tribunal found in his
favour.
The Tribunal noted that the only way in which Somerfield could
have been
identified from the video was from the colour of the uniforms
and the plastic
bags. Furthermore, the video was only on YouTube for three
days and on closer
analysis it seemed the video had only been viewed eight times,
three of which
were by Somerfield managers investigating the disciplinary
offence!

This case makes it clear that the extent of the ‘publication’ will
be relevant and
consideration of the actual, rather than the speculative,
reputational damage will
need to be considered.
26 Credit Control
Legal Aspects
Where, however, a business is considering the conduct of its
employees on
social networking sites outside of work the position is rather
more problematic.
Where an employee has committed a criminal offence outside of
work, which
could impact on the employee’s ability to undertake their job or
where the
conduct is inconsistent with their professional role, then a
dismissal is likely to be
fair. But where there is no criminal activity, the employer tends
to seek to rely on
‘damage to reputation’ as a justification for dismissal or

disciplinary action where
the misconduct complained of arises as a result of a non work
related activity
because generally employers can’t take action against
employees for their
private activities outside of work.
One case which gives an insight into the line that the Courts and
Tribunals will
take in these matters is the case of Smith v Trafford Housing
Trust [2012]. Mr
Smith was demoted because he had posted his views on his
Facebook page
about gay marriage. He brought a breach of contract claim and
won. In finding
in his favour, the Court specifically referred to the following:
the fact that no
reasonable reader of Mr Smith’s Facebook page could think that
his comments
were made on behalf of the Trust (although the Trust was
mentioned on his
Facebook page as his employer); that his views were expressed
moderately and
were his personal views expressed on his personal Facebook
page over a

weekend; and fundamentally, the fact that Mr Smith’s Facebook
page was
clearly for non work related purposes and it had not acquired a
work related
context.
Contrast that case with the case of Gosden v Lifeline Project
Limited [2009].
The facts of the case were a little convoluted but in broad terms,
Mr Gosden had
sent an email to a friend of his who worked at a client of his
employer. The
email was sent from Mr Gosden’s personal email account to the
friend’s
personal email account but it was marked “It is your duty to
pass this on!” It was
an email that contained sexist and racist comments. The friend
did pass it on
which is how it came to be in the client’s email system and
eventually a
complaint as to its contents were made and the email and its
author came to be
reported to Mr Gosden’s employer. Mr Gosden was dismissed
by his employer
for having brought them into disrepute with their biggest client

and for breach of
their equal opportunities policy. He brought a claim for unfair
dismissal and lost.
This case is a warning for individuals who circulate such emails
in private with
little thought for where they may then be sent, but it is
interesting to note that the
Tribunal was more concerned with the fact that Mr Gosden had
no control over
where it may be sent on, rather than the fact that the subject
heading urged
people to send it on. Whether or not it may have influenced the
final decision or
not is hard to assess but in the sorry state of affairs, Mr Gosden
didn’t help
himself by firstly denying that he sent the email and then
denying that it was in
any way offensive.
The Gosden case seems to set the high water mark in terms of
activities
undertaken in private which impact on the employer’s
reputation but it serves as

27 Credit Control
Legal Aspects
a warning to employees and it will be interesting to see if
private emails sending
jokes now have a standard heading ‘do not pass this on’!
Defamation
It is now well known following the Lord McAlpine litigation
that defamation claims
can and indeed will be made against individuals who make
defamatory remarks
on twitter or other networking sites.
But the question for employers is when and if they become
vicariously liable for
any defamatory remarks made by their employees. This brings
into play the
complicated area of whether or not the defamatory remarks were
made during
the course of employment or not. If so, the employer could be
vicariously liable

and it will not be enough to avoid liability simply by that we
have instructed all
employees not to make defamatory remarks on social
networking sites (although
this should of course be included in any social media policy).
The point is
whether the publication is incidental to an act that the employee
was authorised
to do as part of their employment.
This means for example that it might be prudent for an
employer to require
employees who want to tweet to have separate work and
personal twitter
accounts or expressly state that employees who wish to tweet
have to tweet
through the business’ account only in relation to work related
matters and not
through a ‘personal’ email account. Whether or not that is
practical for any
particular business will turn on its particular facts but it is
something that
employers should consider. Furthermore, employers should
always require
employees to add a disclaimer as to the liability of the business

on any
apparently personal social media site or profile but whether or
not that would
‘save’ the business from vicarious liability is a different
question.
Recruitment risks
A Microsoft survey recently found that 41% of employers said
they had actually
not hired someone as a result of their on line reputation, known
as “netrep”. If
however, employers do consider someone’s netrep before
recruiting, there are
legal risks. The most obvious is the potential for claims of
discrimination.
All of those responsible for recruitment will have become aware
of the
increasingly ‘neutral’ content of CVs which do not contain
details of someone’s
age, nationality or marital status but this is not always the case
when looking at
someone’s profile on social net working sites. If such sites are
considered, and
information about protected characteristics (age, sexual

orientation, marital
status etc) is obtained, if that information is then given to the
recruitment
decision maker, there could be grounds to raise an inference of
discrimination if
the application is not successful. In the circumstances, if a job
applicant’s netrep
is to be considered as part of its recruitment process, care
should be taken to
ensure that any information relating to a protected characteristic
that is not
relevant to the role etc is not passed to the decision maker.
28 Credit Control
Legal Aspects
It is also likely that issues will arise under the Data Protection
Act 1998 (DPA)
which regulates the processing of personal data and prescribes
when it is and
when it is not lawful to process that data. There are onerous
obligations in

relation to the processing of sensitive personal data (such a
sexual orientation
and political beliefs) but even generally, the processing must be
fair, lawful and
proportionate and for one of the legitimate aims as prescribed in
the DPA. Thus
employers must be mindful of their DPA obligations when
‘processing’ such data
(looing at netrep) as part of any recruitment exercise.
The management of employee relationships to prevent bullying,
harassment and discrimination
As soon as the employer becomes aware (most often through a
complaint made
by an employee to the employer), that one employee is bullying
or harassing
another or subjecting them to discriminatory conduct through a
social networking
site, the employer should take action.
The fact that any such conduct is on a ‘private’ social
networking site does not
make a practical difference when those two individuals have to
work together. It

is conduct between two employees in the same way as if it
happened at work
and the employer must be seen to act once it is aware of what is
happening.
Human Rights Act 1998
Increasingly, employees who are facing disciplinary action as a
result of
something posted on a social media site are raising their rights
under the Human
Rights Act 1998 by way of a defence. The most common issue
raised is the
right to ‘respect for private and family life, home and
correspondence’ (article 8)
and this extends to a reasonable expectation that employers will
not intrude into
their private life by looking at their personal social networking
sites to monitor
conduct for example. Additionally, employees raise article 10
which is the right
to ‘freedom of expression’.
The case law in the UK has tended to show that rights under the
Human Rights

Act 1998 will not ‘save’ an errant employee where it has
disparaged its employer
and damaged its reputation or where it has abused customers or
colleagues.
Additionally, the right to privacy has proved difficult as a
defence because it is
usually agreed that any right to privacy has been waived by the
individual by
‘posting’ this information on a public forum like Facebook.
There was a case in 2009 of a 16 year old called Kimberley
from Clacton who
was dismissed from her marketing job of just three weeks after
describing it as
‘boring’ on her Facebook page. She didn’t name her employer
but other
members of staff were ‘friends’ of hers on Facebook and saw
the comment.
It attracted media attention at the time and a comment from the
TUC that
employer’s should get a ‘thicker skin’ in relation to such issues.
Two quotes at
29 Credit Control

Legal Aspects
the time, one from the company and one from the TUC sum up
the differences
of opinion that Tribunals are going to have to determine:
The best quote from the case however came from Kimberley’s
mother who said,
“This is a 16 year old girl we’re talking about. She says
Clacton is boring but
we’re not going to throw her out of the house for it”. Quite
right.
What should be done?
There are, as with most things in life, risks and rewards in the
use of social
media in the workplace but one thing is clear, it is not going
away and employers
have little alternative but to address it. The case law, time and

time again,
demonstrates that those employers with well considered and
comprehensive
social media policies are best placed to protect the interests of
the business
when issues arise and as a minimum, suitable and proportionate
policies should
be put in place.
•
•
TUC: “Most employer’s wouldn’t dream of following their staff
down the
pub to see if they were sounding off about work to their
friends” and
Employer: “Had Kimberley put up a poster on the staff notice
board
making the same comments and invited other staff to read it
there would

have been the same result.”
30 Credit Control
Legal Aspects
Copyright of Credit Control is the property of House of Words
Ltd. and its content may not be
without the copyright holder's
express written permission. However, users may print,
download, or email articles for
individual use.
Retail Law Strategist—The Problem-Solving Tool for Retail
Law Spring 2013

Dylan H. Potts
Jenny Holt Teeter
Gill Ragon Owen, P.A.
n today’s fast-paced digital society, we
place a premium on staying connected.
Our social and professional lives are inter-
twined with such social media outlets as
Facebook and Twitter. These social media
outlets provide efficient avenues for commu-
nications and can become effective business
tools for advertising and other promotional
activities. While the benefits of social media
are unquestionable, employers are now fac-
ing difficult policy decisions as they balance
employee rights with business interests.
Many of these policy decisions affect work-
force morale and can lead to significant
employer liability if handled improperly.
Recent case law is illustrative of employer

pitfalls now arising in regulating employee
social media access. Consider the following
hypothetical. A chainstore employer transfers
an employee to another location. The em-
ployee is frustrated over the transfer and
protests the move to her supervisor. After the
supervisor fails to transfer the employee back
to her previous location, the employee logs
onto Facebook and describes her feelings
toward her supervisor using several exple-
tives and also criticizes the employer in the
process. Is the employer justified in termi-
nating this employee for her Facebook
comments? The answer is no, according to
the National Labor Relations Board, Office
of the Gen. Counsel, NLRB, OM 1231,
Report of the Acting General Counsel
Concerning Social Media Cases (2012)
[hereinafter OM 1231].
According to the NLRB, the employer’s
policy against disparagement of the company
through any media outlet was unlawful be-
cause it could reasonably be construed to re-
strict Section 7 activity. Id. The NLRB

further found that the employee engaged in
protected concerted activity because her
Facebook status generated a discussion about
working conditions among fellow employees.
Id. Therefore, the employee’s termination
was considered unlawful.
Realizing the potential liability presented
by operating without a social media policy,
employers have responded by crafting poli-
cies to regulate their employees’ social media
behavior. However, many of these policies
are overly broad and infringe upon employ-
ees’ Section 7 rights under the National
Labor Relations Act (NLRA), codified at 29
U.S.C. §§ 151169 (2012). Balancing legiti-
mate employer interests with employee rights
is essential in the development of an effective
and legal social media policy.
General Confidentiality
and Privacy Issues
When considering employment policies, con-
fidentiality and privacy interests are of gener-
al concern for employees and employers

alike. Employees like to know that their per-
sonal information in the possession of the
I
Managing Social Media in the Workplace
Law Spring 2013
2
employer will remain confidential. This em-
ployee interest continues to evolve as federal
laws such as Family Medical Leave Act and
Americans with Disabilities Act further regu-
late employers’ handling of employee per-

sonal information. Likewise, employers want
to ensure that employees preserve the confi-
dentiality of certain company information
and that employees will not use company
property in a manner that would subject con-
fidential company information to public
disclosure. These confidentiality and privacy
interests have evolved over decades of em-
ployer/employee relations and continue to
remain highly relevant today. For employers,
technology has created a further need to
protect and restrict disclosure of proprietary
electronic information, inasmuch as with one
e-mail transmission, a disgruntled employee
can reveal to the world the employer’s inner
workings, including client data, customer
lists and financial information.
In preserving confidentiality of company
records, employers may create policies to en-
sure that company property is used properly
and not abused by employees. Employers
often institute Internet site restrictions and
routinely review employee e-mails to confirm
that company property is being used for its
intended purpose. See John Soma et al.,

“BitWise but Privacy Foolish: Smarter E-
Messaging Technologies Call for a Return to
Core Privacy Principles,” 20 Albany Law
Journal of Science & Technology 487,
507510 (2010); Christopher Pearson Fazekas,
“1984 Is Still Fiction: Electronic Monitoring
in the Workplace and U.S. Privacy Law,”
2004 Duke Law & Technolgy Rev. 15 (2004).
While employees often believe that they
possess a reasonable expectation of privacy
in their activities while on the employer’s
network, this belief is often misplaced, as
employees’ privacy rights are generally lim-
ited only to those instances where the matter
intruded upon is “intensely private,” Fazekas,
supra p. 15. Employers can reinforce their
right to monitor employee communications
on the employer’s network by placing the
employees on notice that their e-mails and
Internet activities will be monitored. Id. With
notice of an employer’s policy of monitoring
network activity, it is difficult for employees
to claim that they have a reasonable expec-
tation of privacy. Courts will typically bal-

ance a company’s interest in preventing un-
professional conduct or illegal activity over
its network against any privacy interest an
employee can claim in those activities, and
this analysis typically favors employers. Id.;
see also Smyth v. Pillsbury Co., 914 F. Supp.
97, 100101 (E.D. Pa. 1996).
Regulating social media presents similar
challenges for employers. Social media can
be misused by employees and thus subject
employers to liability, create confidentiality
issues and result in significant public embar-
rassment. See Soma et al., supra pp. 507510.
Other more specific employer concerns re-
garding employee use of social media may
include: the use of offensive language or
posting of inappropriate materials; the dispar-
agement of the company and its directors,
officers and employees; harassment of co-
workers; transmission of computer viruses; or
the general lack of employee performance
due to their use of social media outlets. Id. at
515516. Properly crafted social media poli-
cies better protect employers against this type
of misuse and may further help mitigate

damages flowing therefrom.
Law Spring 2013
3
Drafting an Effective and Legal
Social Media Policy
When crafting a social media policy, em-
ployers must remain mindful of employee
rights protected by the NLRA. The NLRA
protects employees’ rights to “engage in con-
certed activities for the purpose of collective
bargaining or other mutual aid or protection.”
29 U.S.C. § 157. This collection of rights is
commonly referred to as an employee’s “Sec-
tion 7 rights.” For an activity to be “con-

certed activity,” an employee must act “with
or on the authority of other employees and
not solely by and on behalf of the employee
himself.” Meyers Industries, Inc. v. NLRB,
268 NLRB 493, 497 (1984) aff’d sub nom.
Prill v. NLRB, 835 F.2d 1481 (1987). The
NLRB is the administrative body charged
with investigating and preventing any person
or company from engaging in violations of
the NLRA. 29 U.S.C. § 160. If an unfair
labor practice is determined, the NLRB can
issue cease-and-desist orders and take other
action warranted under the circumstances.
Employers and lawyers alike frequently
operate under the mistaken belief that the
NLRA does not apply to nonunion employ-
ers. The NLRA, however, excludes from its
definition of “employer” only state and fed-
eral government employers and any employer
subject to the Railway Labor Act. Most other
employers are prohibited from interfering
with rights provided to employees under the
NLRA. 29 U.S.C. § 157; 29 U.S.C. §
158(a)(1). Employers will violate Section
8(a)(1) of the NLRA when a work rule is

enforced that “reasonably tends to chill em-
ployees in the exercise of their Section 7
rights.” Lafayette Park Hotel v. NLRB, 326
NLRB 824, 825 (1998). If an employer’s
social media policy is overly broad in nature
so that it encompasses certain Section 7 ac-
tivities, it may violate the NLRA and an
action by a disgruntled employee could be
brought to the NLRB.
The NLRB, through its acting general
counsel, has recently provided examples of
acceptable and unacceptable social media
policies in a series of memoranda. See OM
1231; Office of the Gen. Counsel, NLRB,
OM 1174, Report of the Acting General
Counsel Concerning Social Media Cases
(2011) [hereinafter OM 1174]; Office of the
Gen. Counsel, NLRB, OM 1259 Report of
the Acting General Counsel Concerning So-
cial Media Cases (2012) [hereinafter OM
1259]. These memoranda address such topics
as materials employees are prohibited from
posting online, overly broad policies that in-
fringe upon employee rights and general dos

and don’ts for employers in regulating em-
ployee social media usage. The memoranda
provide employers with an excellent resource
on which to rely in the creation of social
media policies and the administration of such
policies in the employer/employee setting.
Specific Examples of Unlawful
Social Media Policies
One of the common themes presented
through the NLRB memoranda is the poten-
tial illegality of overly broad, vague or am-
biguous social media policies that infringe
upon employees’ Section 7 rights. A social
media policy that is vague or ambiguous in
its application to Section 7 rights or provides
no limitations or examples that would signal
to employees that the policy does not restrict
Section 7 rights is unlawful. University
Medical Center v. NLRB, 335 NLRB 1318,
13201322 (2001), abrogated in part by
Caesar’s Entm’t v. NLRB, No. 28CA60841,

Law Spring 2013
4
2012 NLRB Lexis 134 (N.L.R.B. Mar. 20,
2012). On the other hand, a social media
policy that sets clear boundaries that restrict
its scope by including examples of conduct
that is clearly illegal or unprotected to the
point where the policy could not be read to
cover Section 7 rights is lawful. Tradesman
International v. NLRB, 338 NLRB 460,
460462 (2002).
In Memorandum OM 1174, the acting
general counsel of the NLRB described an
employer’s Internet/blogging policy that pro-
hibited employees from engaging in “inap-
propriate discussions.” This language was
considered overly broad and could reason-
ably be construed to restrict Section 7 ac-
tivity. See OM 1174. The policy did not

attempt to explain the meaning of “inappro-
priate discussions” or limit its scope through
specific examples to exclude Section 7 activ-
ity and was, therefore, considered unlawful in
its application. Id.
The NLRB offers other specific examples
of inappropriate social media policies, in-
cluding a policy that prohibited employees
from using social media to engage in “unpro-
fessional communication that could negative-
ly impact the Employer’s reputation or in-
terfere with the Employer’s mission or
unprofessional/inappropriate communication
regarding members of the Employer’s
community.” Id. According to the NLRB,
this type of restriction violates Section
8(a)(1) “because it would reasonably be con-
strued to chill employees in the exercise of
their Section 7 rights” and could also en-
compass protected statements about em-
ployment practices. Id. Further, according to
the NLRB, such policy contains no limita-
tions or examples that would indicate to an
employee that Section 7 rights were excluded

from the prohibition. Id.
In addition, a policy requiring employees
to seek approval from their employer to iden-
tify themselves as the employer’s employees
on a social media site and to state expressly
that their comments are their personal opin-
ions and do not necessarily reflect their em-
ployer’s opinions likely violates the NLRA.
See OM 1231. A provision of this type is
considered overly broad and also damaging
to the employee’s Section 7 right to engage
in concerted activity. Id. Furthermore, requir-
ing employees to explicitly state that their
comments are their own and not those of
their employer after each comment posted
places an unreasonable burden upon em-
ployees who seek to exercise their Section 7
rights. Id.
Another social media policy that required
employees generally to “avoid identifying
themselves as the [e]mployer’s employees
unless discussing terms and conditions of
employment in an appropriate manner” was
also found to be unlawful. Id. Aside from the
overly broad nature of the term “appropriate”

in this policy, the NLRB views this re-
quirement as restricting protected activities
such as criticizing terms and conditions of
employment and the employer’s labor poli-
cies. Id.
The NLRB has also found that policy
provisions prohibiting the use of a company’s
name or service marks outside the course of
business without prior approval of the com-
pany violate the NLRA. See OM 1231. The
NLRB concluded that employees have a Sec-
tion 7 right to use their employer’s name or
logo in conjunction with protected concerted
activity, such as to communicate with fellow
employees or the public about a labor dis-
Law Spring 2013
5

pute. The NLRB further concluded that
because this provision could reasonably be
construed to restrict employees’ Section 7
rights, it violated the NLRA. Id.
Finally, a policy prohibiting employees
from publishing any representation about
their employer without prior approval by
senior management was determined to be
overbroad by the NLRB and in violation of
the NLRA because it interfered with em-
ployees’ Section 7 rights.
As the preceding examples demonstrate, it
is imperative that employers carefully con-
struct social media policies that provide spe-
cific limitations and examples that make it
clear to employees that their individual Sec-
tion 7 rights are protected; otherwise, these
polices will be considered overbroad.
Specific Examples of Acceptable
Social Media Policies
While employees have a wide range of rights
and liberties in this area, employers do have a
protectable interest in regulating social me-

dia. The NLRB has upheld as lawful social
media policies that contain rules prohibiting
employees from engaging in certain behav-
iors via social media. Such policies typically
list prohibited actions such as breaching con-
fidentiality, harassment or disparagement of
other employees or the company. With the
necessary specificity, such policies have been
consistently upheld as lawful. Specific ex-
amples of acceptable social media policies
include:
• A policy that “precluded employees from
pressuring their coworkers to connect or
communicate with them via social media.”
See OM 1174. This policy did not restrict
Section 7 activities because it was
“sufficiently specific in its prohibition
against pressuring coworkers and clearly
applied only to harassing conduct;” Id.
• A policy that prohibited the use of social
media to “post or display comments about

coworkers or supervisors or the employer
that are vulgar, obscene, threatening, inti-
midating, harassing or a violation of the
employer’s workplace policies against dis-
crimination, harassment, or hostility on
account of age, race, religion, sex, ethni-
city, nationality, disability or other pro-
tected class, status or characteristic.” Once
again, this policy was upheld as lawful as
the policy clearly identified egregious mis-
conduct and was not utilized to discipline
Section 7 activities; Id.
• A policy containing a rule prohibiting “ver-
bal or other statements that are slanderous
or detrimental to the company or any of the
company’s employees.” Tradesman Inter-
national, 338 NLRB at 462. This rule was
found on a list of 19 rules prohibiting such
egregious conduct as sabotage and sexual
or racial harassment. Id. The NLRB found
that the rule could not reasonably be read to
encompass Section 7 activity because
“slanderous” and “detrimental” activities
were egregious activities that did not in-

volve concerted activity and could be law-
fully prohibited. The NLRB also upheld a
policy prohibiting conduct “that tends to
bring discredit to, or reflects adversely…on
the Company” and prohibiting “conducting
oneself unprofessionally or unethically,
with the potential of damaging the repu-
tation of a department of the Company.”
Ark Las Vegas Restaurant Corp. v.
AFLCIO, 335 NLRB 1284, 1291 (2001).
While the NLRB agreed that the policy was
a bit overbroad and vague and would have
Law Spring 2013
6
preferred to see explicit Section 7 right
exclusions, it found the policy to be lawful

because the totality of the evidence led to a
conclusion that the rule was not aimed at
conduct related to Section 7 activities, but
was related to crimes and other misconduct,
such as giving proprietary information to
competitors.
From a review of these “acceptable” social
media policies it is apparent that the NLRB
favors specificity over generalities. As such,
significant interest should be placed on tailor-
ing a policy specific to the needs of the un-
derlying company as one size may not fit all
as related to an enforceable policy.
Conclusion
Before drafting a social media policy, prac-
titioners should first consider the nature of
the client’s business and the protectable inter-
ests involved. Once they are determined,
significant interest should be placed upon the
specific employee activities subject of regu-
lation. Using a cookie-cutter form policy

found through a Google search may not ad-
dress the specific needs of the client’s busi-
ness or comply with NLRB standards. There
is no one-size-fits-all social media policy;
companies will need to craft their policies
carefully to incorporate industry-specific
concerns while maintaining necessary em-
ployee rights. In this digital age, social media
will continue to thrive and employees will
continue to connect with others and voice
their opinions (and, oftentimes, their dis-
pleasure) with their working environments.
Inevitably, litigation will further shape the
landscape of employer/employee relations as
related to social media usage and policies
derived therefrom. Proper planning and care-
ful assessment will further insulate employers
from this imminent wave of litigation.
This article was originally printed in the Fall 2012 issue of The
Arkansas Lawyer magazine
and is reprinted with permission from the Arkansas Bar
Association.

DYLAN H. POTTS is a shareholder and director of Gill Ragon
Owen, P.A., in Little Rock, AR,
and chairs the firm’s Employment Practice Group. Mr. Potts can
be reached at [email protected]
Gilllaw.com.
JENNY HOLT TEETER is a shareholder and director of Gill
Ragon Owen, P.A., and is a mem-
ber of the firm’s Employment Practice Group who assists
employers with compliance and
policy issues. Ms. Teeter can be reached at [email protected]
Copyright of Retail Law Strategist is the property of
International Council of Shopping Centers and its content
may not be copied or emailed to multiple sites or posted to a
listserv without the copyright holder's express
written permission. However, users may print, download, or

email articles for individual use.
Social Media @ Work:
#policyneeded*
I. SOCIAL MEDIA IN THE WORKPLACE
Social media creates "tremendous potential for
generating buzz—both positive and negative. "̂ Often at
the divide between work and play, social media "raises
difficult questions as to whether and how rules regarding
workplace confidentiality, loyalty, privacy, and monitoring
apply to these new forums and, if so, how these rules are
balanced against freedom of expression" and the at-will
employment relationship.^ As the boundary between work
and play becomes less distinct, social media's appropriate
role in the workplace is receiving increasing attention.^
Ouestions presented by social media in the workplace
are growing along with the accelerated progression of
technology. The courts are being asked: Who owns a

Twitter account, and who should reap the fruits of the
account's success?" If an employee posts on Facebook
about his daughter's cancer progression, then what happens
when his employer sees the post and fires the employee to
save costs? If an employee's Linkedin account makes
The author thanks Cynthia Nance, Dean Emeritus and Nathan G.
Gordon
Professor of Law, University of Arkansas School of Law, for
her energy, time, and
thoughtful guidance in composing this comment.
1. Douglas Dexter, Social Media Policies for the New Digital
Age: New Issues
for Employers 4 (June 13, 2011) (unpublished manuscript) (on
file with the
Arkansas Law Review).
2. Survey: Social Networks in the Workplace Around the World,
PROSKAUER,
http://www.proskauer.com/files/uploads/Documents/Survey-
Social-Networks-in-the-
Workplace-Around-the-World.pdf (last visited Oct. 10, 2013)
[hereinafter Social
Networks Survey].

3. Michael Masri & Pedram Tabibi, Social Media at Work
Raises Issues of
Account Ownership, N.Y. L.J., Mar. 26, 2012, at 11, 11,
available at
http://www.nylj.com/nylawyer/adgifs/specials/0326121abor
&employment.pdf.
4. Maureen Minehan, Protect Social Media Assets From
Departing Employees,
EMP. ALERT (Thomson Reuters, Eugan, Minn.), Mar. 21, 2012,
at 1, available at
http://www.dinsmore.com/files/upload/sociahiiediaassets.pdf.
844 ARKANSAS LAW REVIEW [Vol. 66:843
connections and attracts clients to the employer, then who
has the rights to these chents?
Because technology has advanced rapidly in recent
years, courts have not answered many of these questions.^
Courts and agencies have not, and likely will not, catch up
for a few more years.^ Though little clear-cut legal

authority on these social-media issues exists, employers
should take steps to protect their growing interests and
information.' For Arkansas employers utilizing social
media, the solution is simple: enact a pohcy covering
employees' use of social media.
The goal of this comment is to assist employers and
practitioners by: (1) addressing the intricate employment,
contract, privacy, and ownership rights associated with
social media in key cases, statutes, and administrative
decisions; and (2) providing guidelines and language
needed to craft a clear and concise social-media policy.
II. DEFINING "SOCIAL MEDIA" AND "SOCIAL
NETWORK SITES"
A. Social Media
To address social-media concerns, employers must
have a basic understanding of what "social media" is.
Essentially, social media is a category of media through
which people talk, participate, share, network, and
bookmark online.* Most social-media services encourage
discussion, feedback, voting, comments, and information
sharing.^ Where traditional media facihtates only a one-

way broadcast by delivering content directly to an
individual, social media promotes a two-way conversation
in which web sites, resources, and people connect, create,
and develop content collectively.^"10
5. W. at3.
6. Id
7. Id
8. Ron Jones, Social Media Marketing 101, Part 1, SEARCH
ENGINE WATCH
(Feb. 16, 2009),
http://www.searchenginewatch.com/article/2064413/Social-
Media-
Marketing-lOl-Part-1.
9. Id
10. Id
2013] SOCIAL MEDIA IN THE WORKPLACE 845
Although the forms of social-media sites are constantly
evolving, the most common types of sites are: social news;

social sharing; social bookmarking; and social networks."
Social-news sites allow users to read articles about news
topics and vote or comment on the articles.̂ ^ On social-
sharing sites, users "create, upload, and share videos or
photos with others."" Social-bookmarking sites allow users
to find, bookmark, and save items of interest.̂ '* Finally,
social-network sites allow users "to find and link" to other
users.̂ ^ Once linked, users can access each other's contact
information, interests, posts, and more.̂ * These network
connections and two-way communications test the
traditional workplace structure because of the rapid speed
at which social-networking content and communications
develop." Because the challenges presented by social-
network sites are so diverse, this comment focuses on how
social-media policies can address issues raised primarily in
this context.
B. Social-Network Sites
Conventionally, social-network sites are "web-based
services that allow individuals to: (1) construct a pubhc or
semi-public profile within a bounded system; (2) articulate
a list of other users with whom they share a connection; and
(3) view and traverse their list of connections and those
made by others within the system. "̂ ^ The nature and

nomenclature of these connections has varied from site to
site, but popular terms include: "Friends," "Followers,"
11. Id.
12. Id. (citing examples of social-news sites such as Digg,
Sphinn, Newsvine,
and BallHype).
13. Jones, supra note 8 (citing examples of social-sharing sites,
such as Flickr,
Snapfish, YouTube, and Jumpcut).
14. Id. (citing examples of social-bookmarking sites, such as
Delicious and
Faves).
15. Id. (citing examples of social-network sites, such as
Facebook, Linkedin,
MySpace, and Twitter).
16. Id.
17. See id.
18. Danah M. Boyd & Nicole B. Ellison, Social Network Sites:
Definition,

History, and Scholarship, 13 J. COMPUTER-MEDIATED
COMM. 210,211 (2007).
"Contacts," and "Fans."" Whether one is making friends
or acquiring followers, "[w]hat makes social-network sites
unique is not that they allow individuals to meet strangers,
but rather that they enable users to articulate and make
visible their social networks."^o These visible profiles and
articulated relationship lists are often an employer's
primary concern with social media. ̂ '
C. The Rise of Social-Network Sites
Market research suggests that social-network sites are
growing in popularity worldwide.^^ This explosive growth
has prompted many companies to invest time, money, and
resources in social-media creation, promotion, and
advertisement.^^ Proskauer Rose LLP conducted an
informal survey on emerging trends and practices with
social-media use in the workplace and found that over
seventy-six percent of companies surveyed were utilizing

social media for business.̂ "* Ironically, nearly forty-five
percent of these companies lacked social-network pohcies.̂ ^
The rise of these sites indicates a shift in the
organization of online communities.̂ ** Social-network sites
are primarily organized around people, rather than
interests.^^ Given that social-network sites enable
individuals to connect with one another, "they have become
deeply embedded in user's lives," heavily integrated into
the workplace, and increasingly problematic for the
employer-employee legal relationship.^*
19. Id. at 213-14 (noting that SixDegrees.com, launched in
1997, was the first
recognizable social-network site).
20. W. at 211.
21. Id. at 213; see also Minehan, supra note 4, at 1-3
(describing the steps
employers should take when their employees, who use social-
media accounts to
market the company's products or services, resign and then
declare ownership of
that account).

22. See Facebook Shows Strong Growth Over Past Five Years,
COMSCORE
D A T A M I N E (Feb. 1, 2012),
http://www.comscoredatamine.com/2012/02/facebook-
shows-strong-growth-over-past-five-years.
23. Boyd & Ellison, supra note 18, at 219.
24. Social Networks Survey, supra note 2.
25. Id.
26. Boyd & Ellison, supra note 18, at 219.
27. Id
28. See ¿d. at 221.
III. WHY A SOCIAL-MEDIA POLICY MATTERS
Whether posting pictures, commenting on statuses,
tweeting their locations, or blogging about their days, users'
social-media activities often invite their employers'
concerns.^^ Information posted on the web does not
disappear easily; even "deleted" photographs may remain

accessible through backup copies that linger indefinitely on
servers.^" Although an understanding of social media may
help alleviate these concerns, recent litigation suggests that
social-media issues will likely continue to arise in the
workplace.^*
A clear social-media policy remains an employer's best
tool for countering social-media issues because it provides a
starting place for courts when, not if, issues arise.̂ ^ To
ensure policies apply to all types of lawsuits, employers
should adopt pohcies that are not overly broad or
restrictive, are respectful of employee privacy rights, and
are unambiguous.^^ Attorney Adam S. Foreman, an
authority on issues related to technology in the workplace,
suggests that employers determine the culture they seek to
create and fashion a policy to their specific needs.̂ '*
Nonetheless, when developing such policies, employers
must be cognizant of: (A) the potential legal pitfalls in
social-media pohcies; and (B) their potential responses to
social-media issues with employees.
29. See Minehan, supra note 4, at 1-2.
30. Jacqui Cheng, "Deleted" Facebook Photos Still Not Deleted,
ARS

TECHNICA (Oct. 11, 2010, 3:15 PM),
http://www.arstechnica.com/web/news/2010/10/facebook-may-
be-making-strides.ars.
31. ^ee Minehan, supra note 4, at 1.
32. See id.
33. See Stengart v. Loving Care Agency, Inc., 973 A.2d 390,
396 (N.J. Super.
Ct. App. Div. 2009), affd as modified and remanded, 990 A.2d
650 (N.J. Super. Ct.
App. Div. 2010).
34. Telephone Interview with Adam S. Foreman, Senior
Principal, Miller,
Canfield, Paddock & Stone, P.L.C. (Nov. 20, 2012). Mr.
Foreman's work in labor
and employment law has been recognized by Michigan Super
Lawyers, Best
Lawyers in America, Chambers USA, and DBusiness. See Adam
S. Foreman,
M I L L E R C A N F I E L D ,
http://www.niillercanfield.com/AdamForeman (last visited Nov.
11,2013).

A. Potential Pitfalls Facing Social-Media Policies
Specifically, Arkansas employers developing social-
media policies should familiarize themselves with the laws
and potential legal pitfalls that present social-media issues,
including: (1) the National Labor Relations Act (NLRA);
(2) the Electronic Communications Privacy Act (ECPA);
(3) the Federal Trade Commission Guidelines (Guides); (4)
the Fair Credit Reporfing Act (FCRA); (5) the Health
Insurance Portabihty and Accountabihty Act (HIP A A); (6)
the Genetic Information Nondiscrimination Act (GINA);
(7) the Computer Fraud and Abuse Act (CFAA); (8) the
common-law right to privacy; and (9) various state laws.
The following sections address each of these legal areas
respectively.
7. National Labor Relations Act
The NLRA-codified at 29 U.S.C. §§ 157-169 and
enforced by the National Labor Relations Board (Board) —
is the cornerstone of federal labor law.̂ "̂ Section 157 of the

statute explicitly defines the right of employees to engage in
"concerted activities for the purpose of collective
bargaining or other mutual aid or protection."''* Section
158(a)(l) states that employers shall not "interfere with,
restrain, or coerce employees in the exercise" of their
section 157 rights.̂ ^ The NLRA protects activifies such as:
joining or forming a union; picketing; striking; pursuing a
35. National Labor Relations Act of 1935, Pub. L. No. 74-198,
49 Stat. 449
(codified as amended at 29 U.S.C. §§ 151-169 (2006)); see also
Hanan B. Kolko,
Address at the American Bar Association: Investigating and
Forgetting on the Web:
The Intersection of 21st Century Social Media and the 20th
Century National Labor
Relations Act 1 (Aug. 7, 2011), available at
http://www.americanbar.org/content/dam/aba/administrative/lab
or_law/meetings/201
l/annualmeeting/030.authcheckdam.pdf. The NLRA covers only
employees; it does
not cover independent contractors. 29 U.S.C. § 152(3); Kolko,
supra. Further, many
"new economy" workers, who spend much of their working day
online, are not

covered. Kolko, supra.
36. 29 U.S.C. § 157; see also Protected Concerted Activity, N A
T ' L L A B . R E L .
B O A R D , http://www.nlrb.gov/rights-we-protect/protected-
concerted-activity (last
visited Sept. 30, 2013) ("The law we enforce gives employees
the right to act
together to try to improve their pay and working conditions or
fix job-related
problems, even if they aren't in a union.").
37. 29 U.S.C. §158(a)(l).
grievance; and speaking with co-workers about a job issue.̂ *
Courts, and the General Counsel of the Board, must now
address whether activities such as "tweeting" and Facebook
posting fall under these protected activities.^^
The Board has expressly stated that social-media issues
are of special interest to its current agenda because social-

media policies cover a broad range of topics, including:
electronic technologies; confidentiahty; privacy; protection
of employer information; intellectual property; and contact
with the media and government agencies.'*" In 2011, the
Board's Acting General Counsel, Lafe Solomon,
acknowledged that every regional office of the Board had
encountered social-media cases.'*̂ Although adverse-
employment actions garner the most attention, employers
must be mindful of the NLRA's reach into all employment
matters, including pertinent social-media issues hke
employee surveillance and an employee's right to privacy.'*^
a. The First Intersection of the NLRA and Social Media
In December 2009, the Board's Division of Advice
(Advice Division) first addressed the intersection of the
NLRA and social media in an Advice Memorandum
38. Kolko, supra note 35.
39. See irf. at 1,3-8.
40. Memorandum from Anne Purcell, Assoc. Gen. Counsel, Div.
of
Operations-Mgmt., Nat'l Labor Relations Bd., to all Reg'l Dirs.,
Officers-in-Charge,

and Resident Officers, Nat'l Labor Relations Bd., Report of the
Acting General
Counsel Concerning Social Media Cases, OM 12-59, at 2 (May
30, 2012), available at
http://www.mynlrb.nlrb.gov/link/document.aspx/09031d4580a3
75cd [hereinafter
Memorandum 12-59]; iee also Memorandum from Lafe E.
Solomon, Acting Gen.
Counsel, Nat'l Labor Relations Bd., to all Reg'l Dirs., Officers-
in-Charge, and
Resident Officers, Nat'l Labor Relations Bd., Mandatory
Submissions to Advice,
GC 11-11, at 1-2 (Apr. 12, 2011), available at
http://www.mynlrb.nlrb.gov/link/document.aspx/09031d458047
021e.
41. Scott Faust, NLRB Issues Complaint in NY Facebook Case,
PROSKAUER
L A B . R E L . U P D A T E (May 20, 2011),
http://www.laborrelationsupdate.com/nlrb/nlrb-
issues-complaint-in-ny-facebook-case.
42. See Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 884
(9th Cir. 2002)
("Stirveillance 'tends to create fear among employees of future

reprisal' and thus,
'chills an employee's freedom to exercise' his rights under
federal labor law."
(quoting Cal. Acrylic Indus, v. NLRB, 150 F.3d 1095, 1099 (9th
Cir. 1998))); see also
Flexsteel Indus., Inc., 311 N.L.R.B. 257, 257 (1993) ("The test
for determining
whether an employer has created an impression of surveillance
is whether the
employee would reasonably assume from the [employer's]
statement that [the
employee's] union activities had been placed under
surveillance.").
concerning a Sears social-media policy."*-̂ In the Sears
Holdings case, a union sought to organize Sears technicians
who were scattered geographically.'"^ As part of the
campaign, the union created a website, Facebook and
MySpace pages, and a Yahoo listserv, none of which were
affiliated with Sears but which technicians "routinely
u s e [ d ] . . . to discuss the [u]nion campaign and other work-

related concerns.'"*^
Sears issued its first social-media policy in June 2009.''*
The policy prohibited associates from discussing "in any
form of social m e d i a . . . [the d]isparagement of [the]
company's or competitor's products, services, executive
leadership, employees, strategy, and business prospects.'"^''
Once Sears issued the policy, technicians who participated
on the hstserv expressed concern that the policy, if
applicable, infringed their freedom of expression.'*^
In response to the policy, the union filed an unfair-
labor-practice charge, alleging that the policy chilled the
exercise of protected activity in violation of section
158(a)(l) of the NLRA.^' The case was submitted to the
Advice Division, but no evidence demonstrated the
employer had used the policy for employee discipline or in
response to the union campaign, the listserv, or any other
protected activity.''"
The Advice Division dismissed the charge because the
Sears social-media policy could not "reasonably be
interpreted in a way that would chill Section [157]
activity."^' The Advice Division found that the policy rule

43. Advice Memorandum from Barry J. Kearney, Assoc. Gen.
Counsel, Div.
of Advice, Office of the Gen. Counsel, Nat'l Labor Relations
Bd., to Marlin O.
Osthus, Reg'l Dir., Region 18, Nat'l Labor Relations Bd., Sears
Holdings
(Roebucks), Case 18-CA-19081 (Dec. 4, 2009), 2009 WL
5593880, at *1 [hereinafter
Sears Holdings].
44. Id.
45. Id.
46. Id.
47. M. at*2.
48. Sears Holdings, supra note 43, at *2.
49. Id. at "'I; see supra notes 37-38 and accompanying text
(describing the
scope of section 158(a)(l).
50. Sears Holdings, supra note 43, at *2.
51. Id. at *l-3. In reaching its decision, the Advice Division
relied on
Lutheran Heritage Village-Livonia, where the Board outlined
the inquiry into a

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