The National Labor Relations Board recently signaled that it will follow acting general counsel Lafe Solomon's directives aimed at invalidating broad social media policies. Costco Wholesale Corporation instituted a social media policy in its employee handbook prohibiting employees from posting negative messages about the company on social media websites. Specifically, the policy stated:
"Employees must be aware that statements posted
electronically . . . 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."
The United Food and Commercial Workers Union filed an
administrative charge against Costco, alleging that the policy
violated National Labor Relations Act ("NLRA") Section
8(a)(1). While an Administrative Law Judge ("ALJ") found
that employees would not reasonably construe this policy as
regulating and inhibiting protected conduct under the NLRA, the
National Labor Relations Board ("NLRB") disagreed.
The NLRB reversed the ALJ decision, finding that Costco's
"maintenance of the [policy] has a reasonable tendency to
inhibit employees' protected activity and, as such, violates
Section 8(a)(1)." Section 7 of the NLRA grants employees the
rights to form and join unions, to collectively bargain and engage
in other concerted activities for the purpose of collective
bargaining. NLRA Section 8(a)(1) prohibits employers from violating
those rights granted to employees by Section 7.
The NLRB noted that Costco's policy did not explicitly
reference protected Section 7 activity. However, because the policy
prohibited any statements that "damage the Company," it
restricted certain Section 7 activity in violation of the NLRA. The
NLRB held that if the policy contained some accompanying language
that limited its application to certain prohibited actions that
fall outside of Section 8(a)(1)'s protection, the policy would
have been upheld. The extremely broad coverage of the social media
restriction, however, inhibited Section 7 in violation of the
NLRA.
This decision follows recent guidance from NLRB acting general
counsel Lafe Solomon regarding the scope of social media policies.
The prior guidance made clear that social media policies that
reasonably inhibit Section 7 were not permissible under the NLRA.
The NLRB's view in this decision is consistent with the issued
guidance.
Employers should consider how this decision and recent guidance
from the acting general counsel impact their social media policies.
Most importantly, employers should ensure that managers understand
the social media policies and the type of activity protected under
the NLRA so that employment decisions are taken on legitimate,
defensible bases.
Originally published on the Employer's Law Blog
www.daypitney.comThe content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.