National Labor Relations Board Issues Its First Decision Invalidating a Social Media Policy
As discussed in our previous client alerts (available here and here) and our webinar (available here), social media policies have become sources of legal controversy and have been of particular interest to the National Labor Relations Board (NLRB). Continuing its scrutiny of those policies, the NLRB issued its first decision regarding a social media policy on September 7, 2012 in Costco Wholesale Corp. In that case, the NLRB held that Costco’s social media policy was overly broad and violated the National Labor Relations Act (NLRA) because it prohibited employees from making statements online that damage the reputation of the company or any person. A copy of the decision is available here.
In reviewing Costco’s policy, the NLRB analyzed “whether [the policy] would reasonably tend to chill employees in the exercise of their Section 7 rights” under the NLRA. Generally, Section 7 of the NLRA grants employees the right to engage in protected, concerted activities such as protesting working conditions or addressing other working conditions. Although Costco’s policy did not expressly prohibit Section 7 activity, the NLRB concluded Costco’s employees would reasonably interpret the language to “chill” the exercise of their right to engage in protected, concerted activity such as “concerted communications protesting [Costco]’s treatment of its employees.” The NLRB contrasted Costco’s broad and general policy with employment policies that it has found lawful that have prohibited defamatory or sexually harassing comments, which are not protected under Section 7.
The Costco decision is significant because the NLRB has indicated that social media policies containing broad and general prohibitions concerning actions or statements will be deemed unlawful. Consequently, it is vitally important that social media policies are carefully reviewed to ensure they are drafted in a manner consistent with the NLRB’s ruling. Honigman’s Labor and Employment attorneys regularly assist employers with NLRB issues, as well as in drafting social media policies. If you have any questions or concerns regarding this issue, please contact one of the attorneys listed here.