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While the National Labor Relations Board's (the NLRB) Acting
General Counsel Lafe Solomon has issued multiple reports on
social-media policies over the course of the last year, signaling
NLRB scrutiny of employer policies, the NLRB itself had yet to rule
on any cases until early September 2012. On Sept. 7, 2012, however,
the NLRB issued its first decision on these policies. In that
decision, the NLRB reversed an administrative law judge (the ALJ)
finding and ruled that that Costco Wholesale Corp.'s
social-media policy violated Section 8(a)(1) of the National Labor
Relations Act (the NLRA) by inhibiting employees' from
exercising their rights under Section 7. Costco Wholesale Corp.,
358 NLRB No. 106 (2012).
The policy at issue prohibited, in pertinent part, statements
posted electronically that "damage the Company, defame any
individual or damage any person's reputation" and stated
that such statements could potentially be grounds for discipline,
up to and including termination. The ALJ, in his subsequently
overturned opinion, held that the NLRB General Counsel had not met
his burden that Costco's policy would be perceived by employees
as inhibiting NLRA-protected conduct. Rather, the ALJ found that
employees would reasonably infer that Costco's purpose in
promulgating the rule was to ensure a "civil and decent
workplace." (Section 7 of the NLRA permits employees, among
other activities, to "join, form, or assist unions" and
"to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection.")
On appeal, however, the NLRB found that the rule, though not
explicitly prohibiting Section 7 activity and not specifically in
response to any union activity, "clearly encompasses concerted
communications protesting [Costco's] treatment of its
employees" and, therefore, 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 also noted that nothing in
the rule excluded protected activity from its broad prohibitions.
This combination of factors led the NLRB to find that the rule had
a "reasonable tendency to inhibit employees' protected
activity and, as such, violates Section 8(a)(1)".
While the remedy in this case was not monetary, but rather
required the offending language to be rescinded or modified and a
remedial notice to be posted, facing an investigation and possible
prosecution by a federal agency can be expensive and bad for
business. Further, unlawful policies can be used by unions as the
basis for setting aside NLRB representation elections in the event
the union loses in an attempt to organize non-union workers.
Accordingly, employers should contact experienced counsel when
drafting, implementing, or enforcing social-media policies. As this
case makes clear, a well-meaning, but incorrectly worded or
overbroad, social-media policy can lead to an adverse finding by
the NLRB.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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