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September 2011
Federally Acceptable Social Media Policies
By Gary Smith

Federally Acceptable Social Media Policies

     In light of several cases where the National Labor Relations Board (NLRB) has found that employers’ social media policies violate federal law, the U.S. Chamber of Commerce has surveyed current cases before the NLRB regarding these policies. There are currently 129 cases that have come before the NLRB that involve social media in some way. (See:

     The base questions involved include: whether there is a policy, whether the action prohibited by the policy is protected by federal law, and whether the employer unlawfully interrogated, threatened or surveilled employees.

     For example, is a statement of one supervisor to one or more employees about what they can and cannot say on Facebook an “employer policy”? Maybe. Is expressing the desire that a building collapse and kill the management of a company protected? Probably not. Is firing a person who complained about the quality of the food served at an event unlawful? Maybe.

     It is important to remember that the issues regarding employees’ use of social media are the same for employees’ use of any media. The media used can be T-shirts employees wear to work, posters they hold on the sidewalk, letters they write to customers, and meetings they hold during working hours. If the action is designed to get more than one employee involved in addressing an issue related to the terms or conditions of their employment, it is most likely protected by federal law.

     In adopting any social media or other policy, employers must make certain that they do not have policies that restrict employees’ ability to discuss and organize about any concerns they have related to their employment. Further, employers must not engage in actions, like monitoring employee communications, in a way that could restrict or discourage employees from discussing issues they have with their employment.

     What is and is not acceptable under federal law is getting harder to predict, and employers need to have experienced advice to make certain they don’t end up being the next headline.



Entrepreneurship and Economic Strength

     The University of Nebraska—Lincoln Bureau of Business Research has released its 2010 rankings of states based on their relative economic strength. The study focuses on 5 factors. Those factors are:

  • Percent growth in employer establishments
  • Percent growth in employer establishments per capita
  • Business formation rate
  • Patents per thousand residents; and
  • Gross receipts from sole proprietorships and partnerships per capita.


     In 2010, North Carolina fell from 29 in 2008 to 41 in 2010. South Carolina fell from 43 in 2008 to 50 in 2010. The top five states were New York, Washington, Massachusetts, New Jersey and Oregon.


     In another more comprehensive study by the U. S. Chamber of Commerce released this year, North Carolina and South Carolina earned the following rankings:

  • North Carolina
    • 9th in Small Business Lending
    • 10th in College Affordability
    • 11th in Business Birth Rate
    • 19th in High Tech Share of All Businesses
    • 22nd in Economic Output per Job
  • South Carolina
    • 3rd in Export Intensity
    • 7th in Growth in Share of National Exports
    • 8th in Small Business Survival Index
    • 15th in Business Birth Rate
    • 24th in Business Tax Climate


What’s Bugging Business Owners

     A recent survey of 1,409 small business owners (businesses with annual revenues of less than $25 million) by Harris Interactive found that many (84%) of the owners believe the national economy is on the wrong track. Interestingly, a majority of owners (61%) thought their business was on the right track.


The top five challenges for their businesses expressed by the owners were:

  • economic uncertainty,
  • the growth of U.S. debt and deficit,
  • the 2010 healthcare bill,
  • over-regulation, and
  • high taxes.


     The uncertainty felt by owners showed glaringly when business owners talked about the future of their business: 39% thought their best days were ahead; 23% thought their best days were behind; and 38% just don’t know if the future will be better or worse for them. Of the owners surveyed, 41% of them don’t know if America’s future will be better or worse overall.

     The survey also revealed that the owners want the federal government to provide certainty (85%), not assistance (8%), and to otherwise get out of the way (79%). Eighty percent of the owners view the debt and deficit as definitely impacting their business’ ability to survive.

     The bottom line for most owners in the survey is that they aren’t hiring and don’t know how to plan based on what they have experienced so far in 2011 in terms of the economy overall and what the government has or has not been doing. They are looking for some level of certainty about the future they can build on.

     Content contributed by Wishart, Norris, Henninger & Pittman, P.A., which partners with owners of closely-held businesses to provide comprehensive legal services in all areas of business, tax, estate planning, succession planning, purchases and sales of businesses, real estate, family law, and litigation. For more information, contact Gary Smith at 704-364-0010, follow on Twitter @glawnews, or visit



Gary Smith is an attorney at Wishart, Norris, Henninger, P.A.
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