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SHRM Newsletter: NLRB OUTLINES ACCEPTABLE SOCIAL MEDIA POLICY ELEMENTS

06/11/2012

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 June 11, 2012

This is Utah SHRM Legal-mail no. 2012-13 prepared for Salt Lake SHRM, the Human Resources Association of Central Utah (HRACU), the Northern Utah Human Resources Association (NUHRA), the Color Country Human Resources Association (CCHRA), the Bridgerland Society for Human Resource Management and Utah at-large members of the national Society for Human Resource Management (SHRM).  This update is best viewed in an HTML format.  Please reply with your name and “UNSUBSCRIBE” in the subject field if you no longer wish to receive this message.

CONTENTS:

-  NLRB OUTLINES ACCEPTABLE SOCIAL MEDIA POLICY ELEMENTS

-  PAYCHECK FAIRNESS ACT STALLS IN SENATE

-  NATIONAL RETAIL ER CHARGED WITH PAY/PROMOTION DISCRIMINATION

-  COURT EXPANDS LIABILITY FOR SUBCONTRACTOR’S EMPLOYEES

-  SOX PROVISIONS MAY APPLY TO PUBLIC COMPANY’S CONTRACTORS

NLRB OUTLINES ACCEPTABLE SOCIAL MEDIA POLICY ELEMENTS:  The National Labor Relations Board (NLRB) has issued a sample employment social media policy it believes would be lawful and not interfere with employee rights to engage in concerted activities under the National Labor Relations Act.  You can read the NRLB’s report and sample policy here: http://www.nlrb.gov/news/acting-general-counsel-releases-report-employer-social-media-policies National SHRM has published an excellent summary of what an employer can say in such a policy.  Here is that summary-

“What exactly can an employer say in its policy? 

An employer may prohibit users from posting anything on the Internet in the name of the employer or in a manner that could reasonably be attributed to the employer without prior written authorization from the president or the president’s designated agent. And it’s OK to have a prohibition on representing any opinion or statement as the policy or view of the employer or of any individual in their capacity as an employee. The report concluded with a verbatim copy of a social media policy approved in full. That policy provides that employees must:

Know and follow the rules.

Be respectful.

Be honest and accurate.

Post only appropriate and respectful content.

Not retaliate.

And some language about confidentiality apparently is lawful, as the NLRB approved this policy’s statement that employees ‘maintain the confidentiality of employer trade secrets and private or confidential information. Trade secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.’ The employer could require employees to respect financial disclosure laws when online and to not create a link from their blog or social networking site to an employer website without identifying himself or herself as an employer associate. 

‘Express only your personal opinions,’ the approved policy also stated. ‘Never represent yourself as a spokesperson for the employer.’

The approved policy concluded by saying that ‘associates should not speak to the media on the employer’s behalf without contacting the corporate affairs department. All media inquiries should be directed to them. For more information—If you have questions or need further guidance, please contact your HR representative.’”

PAYCHECK FAIRNESS ACT STALLS IN SENATE:  The United States Senate recently considered S. 3220, the Paycheck Fairness Act, noted in the last update as a legislative alert. Proponents of the bill were unable to muster 60 votes to cut off debate on the bill, and thus it is not likely to become law. The bill prohibits employers from retaliating against workers who ask about pay disparities and allows employees to sue for punitive damages when there are large differences in salary levels between male and female workers.

NATIONAL RETAIL ER CHARGED WITH PAY/PROMOTION DISCRIMINATION: Some 2,000 current and former female employees of a large national retailer have filed pay discrimination claims with the Equal Employment Opportunity Commission (EEOC).  These charges were made in the aftermath of a United States Supreme Court ruling that these types of claims could not be brought as a class action. Most of the claims involve employees in the Southeastern part of the country, but every state other than Montana and Vermont are represented in the filings. The charges allege the company has engaged in gender bias in pay and promotion decisions.

COURT EXPANDS LIABILITY FOR SUBCONTRACTOR’S EMPLOYEES: A recent decision by the Utah Supreme Court could expand a general contractor’s liability for harm done to a subcontractor’s employee while working.  This case involved a claim for injury a subcontractor employee brought against the general contractor after he fell from a scaffolding at a work site. The court held that the general contractor must be responsible for conditions on the property and for general risks to anyone on the premises.  Thus, the court allowed the case to go to trial on a claim that the general contractor was negligent towards such persons, including a subcontractor’s employee.

SOX PROVISIONS MAY APPLY TO PUBLIC COMPANY’S CONTRACTORS:  The Administrative Review Board of the United States Department of Labor (DOL) has ruled that certain federal whistleblower provisions not only apply to public companies, but also to private companies that contract with public-traded companies.  The case involved a whistleblower claim brought pursuant to the Sarbanes-Oxley Act of 2002 (SOX), which applies to activities of publicly-traded companies.  This DOL ruling conflicts with the ruling of a federal appeals court on the same issue in a different case and reflects an emerging trend that DOL is administratively interpreting SOX in a more expansive manner than are the federal courts.

 
Written by: Employment Attorney, Michael Patrick O'Brien
Utah State and Salt Lake SHRM legal director
Email: mobrien@joneswaldo.com
Phone: 801-534-7315
Website: www.joneswaldo.com

Legal-mail is a legal and legislative update service sent out about twice a month to various Utah SHRM members and chapters. As a courtesy to SHRM, the Utah law firm of Jones Waldo Holbrook & McDonough P.C. underwrites the costs of the service. If you have any questions or comments, please contact Michael Patrick O'Brien.

 

Disclosure: These updates are merely updates and are not intended to be legal advice. Receipt of this information does not create an attorney-client relationship.