As I have discussed here, the National Labor Relations Board (“NLRB”) has recently turned its attention to companies’ social media policies. Under Section 7 of the National Labor Relations Act, all employers, including those that have no union, are prohibited from interfering with employees’ rights to discuss their terms and conditions of employment amongst themselves. Because social media outlets such as Facebook, Twitter and the like are where these sorts of conversations often occur, the NLRB has focused its attention on companies’ social media policies to make sure that the policies do not chill employee discussions of terms and conditions of employment. Prior to this month, the NLRB’s social media guidance has been in the form of written guidelines issued by its general counsel. Now we have the first published opinion on the subject from the National Labor Relations Board.
In a decision issued September 7, 2012 against Costco, the NLRB found that this social media policy violated the National Labor Relations Act:
Any communication transmitted, stored or displayed electronically must comply with the policies outlined in the Costco Employee Agreement. Employees should be aware that statements posted electronically (such as [to]online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.
The NLRB determined that this policy violated the National Labor Relations Act because, “employees would reasonably conclude that the rule requires them to refrain from engaging in certain protected communications (i.e., those that are critical of [Costco] or its agents)”. The NLRB noted that, had the policy been accompanied by limiting language establishing that the intent was only to protect against the publication of malicious, unlawful, or abusive language, the policy might have passed muster. Without such limiting language, there was no reason for employees to conclude that this policy was not intended to chill discussion of terms and conditions of employment, and thus the policy violated the National Labor Relations Act.
This NLRB decision serves to emphasize that any social media policy adopted by an employer must be carefully crafted to protect the interests of both employer (from harmful posts) and employee (from punishment for engaging in legally protected discussions of terms and conditions of employment). Counsel should be consulted to assist in crafting such a policy.
The analysis set forth in this article is provided for general understanding only and should not be considered legal advice. Counsel should always be consulted for advice regarding a specific situation.
