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August 2011
Volume 1, Issue 5 |
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| About the Author
Amy D. Cubbage, Esq.., Of Counsel in our Louisville office, practices litigation in the areas of complex tort and commercial litigation, including class actions, toxic torts and mass torts, and employment litigation. She also litigates and counsels clients in the area of general constitutional and governmental law, with an emphasis on First Amendment, campaign finance, elections, and other constitutional issues, including the commerce clause, public contracts, governmental ethics, and eminent domain.
She also has experience in litigating and counseling clients with respect to energy and environmental matters, including cases involving CERCLA, RCRA, OSHA, and related state regulatory programs.
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Social Media 101: Regulate
Social media is everywhere and is here to stay. This summer we
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Amy D. Cubbage, Attorney |
have seen the good side of social media through the wonderful on-the-spot news updates during the revolutions and uprisings in the Arab world, most recently in Libya and Syria. We have also been witness to the dark side, as demonstrated by the downfall of New York Representative Anthony Weiner and his unfortunate distribution of inappropriate personal pictures through Twitter. The ubiquity of social media has caused a headache for employers, however. Just how much can and should an employer regulate the social media use of its employees?
Employers can regulate social media, but should do so carefully.
Employers can regulate social media, but should do so carefully
For example, on August 18, 2011 the National Labor Relations Board's Office of General Counsel released a summary of fourteen NLRB cases involving social media from July 2010 to August 2011. [Note that the National Labor Relations Act, under which the NLRB acts, applies to most private sector employees whether or not the workplace is unionized.] This document can be viewed at https://www.nlrb.gov/news/acting-general-counsel-releases-report-social-media-cases.
In short, except in four specific cases where the use of social media constituted concerted activity regarding terms and conditions of employment, the NLRB held that employers could in fact discipline and terminate employees for derogatory and offensive social media posts about the employer or other employees. In each of these cases, however, the employer had carefully-drawn social media policies which themselves did not prohibit the use of social media for protected concerted activity.
In contrast, the NLRB rejected employer actions taken under social media policies deemed to potentially infringe on protected concerted activity. In one case, a nurse posted a complaint on her Facebook page about a coworker's frequent absences along with a request for other employees to contact her with any additional information. The nurse was terminated on the basis that the post was in violation of written policy forbidding the dissemination of private or confidential information. Though the nurse was clearly engaging in concerted activity in this example, thus making her discharge inappropriate, the NLRB also noted that the written policy was flawed since it was overbroad. There were no limitations or examples in the written policy of what was deemed "confidential" or "private," and the policy could be reasonably interpreted to reach concerted activity regarding terms and conditions of employment.
So how should I regulate social meida?
The first step in regulating employee use of social media is to craft a carefully-worded social media policy. The policy should never prohibit use of social media to engage in concerted activity regarding terms and conditions of employment. The policy must also take care to be sufficiently concrete and narrow so that there is no doubt that concerted activity is not covered. For example, if you want to prohibit the dissemination of confidential information, a valid and indeed practical restriction, explain (READ FULL ARTICLE)
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McBrayer, McGinnis, Leslie & Kirkland, PLLC is pleased to that our firm has received a first-tier ranking in the 2011-2012 U.S. News - Best Lawyers "Best Law Firms" in the area of administrative/regulatory law for Lexington, KY.
The rankings are based on a rigorous evaluation process that included clients, highly skilled lawyers and law firm representatives. An unprecedented amount of data was collected, emphasizing the scope of this endeavor and the significance of our firm's presence in this unparalleled guide to law firm expertise.
The rankings in their entirety will be available November 1, 2011 on USNews.com, which receives nearly 9 million unique visitors a month. Through this unique opportunity, our firm can capture the attention of the media, corporate decision-makers, the legal profession, and a broad range of legal consumers.
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James H. Frazier, Managing Partner, has been elected as Chairman of The Lexington & Fayette County Parking Authority Board of Commissioners."My role will be to meet the parking needs of our citizens, business leaders, and surrounding neighborhoods through development of additional parking resources such as new structures and renovation to existing facilities which will enhance downtown business and economic growth," said Frazier. LFCPA is an agency, instrumentality and constituted authority of the Lexington Fayette Urban County Government. Their mission is to provide, maintain and operate adequate, high-quality, customer-focused public parking and encourage economic growth for the benefit of the residents, businesses and visitors of Lexington-Fayette County.
Jaron P. Blandford, Partner in our Lexington office, received a AV Martindale-Hubbell® Peer Review Rating. Martindale-Hubbell conducts secure online Martindale-Hubbell Peer Review Rating surveys of lawyers across multiple jurisdictions and geographic locations, in similar areas of practice as the lawyer being rated. Reviewers are instructed to assess their colleagues' general ethical standards and legal ability in a specific area of practice. The numeric rating determines the Peer Review Rating, which includes a rating term and Certification Mark. An AV® Preeminent (4.5-5.0) certification mark is a significant rating accomplishment - a testament to the fact that a lawyer's peers rank him or her at the highest level of professional excellence.
Robert T. Watson, Partner in charge of our Louisville office, will serve on Greater Louisville Inc.'s Economic Development Policy Committee. Greater Louisville Inc.'s purpose is to transform the community into the Idea Capital of the World, where imaginations and individuals thrive. GLI is working to accomplish this through a dedicated and comprehensive focus on increasing human capital, driving job creation and entrepreneurship, maximizing global opportunities, and engaging business leaders in support of the community's transformation.
David A. Cohen, Associate in our Lexington office, has been appointed to the LFCUG Division of Historic Preservation Commission (HPC). HPC promotes preservation issues of importance in Lexington-Fayette County. They are charged with discussing, deliberating and taking action on preservation issues within the county. The Commission reviews nominations of historic and architecturally significant properties to the National Register of Historic Places, promotes local historic districts and landmarks, works with preservation education for Lexington-Fayette County, and periodically reviews and updates the Design Review Guidelines. The Commission also aids in the coordination of public and private events that have to do with historic preservation and education of the public, owners of historic landmarks, residents of historic areas and other interested parties.
Mary Ellen Wiederwohl, Assistant Director of MML&K Government Solutions, will serve on Greater Louisville Inc.'s Education Advisory Committee. The committee helps GLI address education issues at the local, state and federal levels. GLI is committed to quality schools - public, private, magnet, traditional or charter - that provide educational excellence and attainment for all students, and that ensure dramatic and measurable progress in closing the achievement gap. Changes considered to state education laws or regulation should meet these goals while preserving a diverse student population in our classrooms.GLI's education positions encourage policies and funding that bolster a system of high expectations, alignment and measurable results, thereby increasing degree attainment and workforce readiness.
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