My cover is blown; despite my dashing visage and roguish behavior, I’m still a geek at heart. As such, I still read anything I can get my hands on, including gear-head publications like HR Magazine. Nothing says “thrill seeker” like a man reading a Human Resources periodical.

Nevertheless….in the February, 2013 edition, readers are offered an interesting take on social media and the workplace. Specifically, the author (David Rubin, Nutter McClennan & Fish LLP) advises the risk involved with establishing social media policies. The gist of it? General counsel seeking loopholes in the NLRA (National Labor Relations Act) have been busily exploring ways to challenge terminations based on corporate social media policy infractions.

For most companies, the genie is out of the bottle, so attempting to implement a Social Media Policy can be difficult AND ineffective. Suppression of speech when referencing the company, in all its forms, can always attract the attention of employee rights advocates (read: attorneys.) In a scenario described in the article, prosecuting counsel advises “…it might be permissible to fire an employee who publicly criticizes the employer’s product or service. But it’s NOT okay to fire an employee criticizing the treatment of workers or who is generally critical of the employer.” 

So, this statement is safe if posted on my Facebook account? “My company sucks, they treat us like garbage, but we do make a fine Macaroon.”


“We taste good despite the jagweeds that made us.”

Part of the issue is the broad, over-generalization of a policy, which may, in effect, moot its applicability. The NLRB (National Labor Relations Bureau) is the agency assigned to enforce the NLRA. In the agency’s first ruling on the subject, Costco was found to have an “unlawful” electronic posting policy ~ the problem? The rule threatened employee punishment if statements were made to “damage the company, defame an individual, or damage any person’s reputation.” Overly broad = unlawful.

The author suggests a more effective way to police these actions is via harassment, confidentiality, and nondisclosure policies, as the social networking landscape continues to change (and attract a lot of legal attention.) In other words, stick to what we know before venturing into the wilderness unprepared.

Good advice, counselor.

John “Whit” Whitaker is Founder of the HR Hardball™ movement. We’re known for our straight talk, no-nonsense approach to complicated issues. We rest our case. 

Got a thought to share? Send it along!