NLRB Strikes Again and Issues First Social Media Decision

Author: Beth P. Zoller, XpertHR Legal Editor

Employers may want to be careful when drafting social media policies based on the first decision by the National Labor Relations Board (NLRB) directly addressing social media use and the right to engage in protected activity under the National Labor Relations Act (NLRA).

In Costco Wholesale Corporation and United Food and Commercial Workers Union, Local 371, Case 34-CA-012421 (September 7, 2012), the NLRB utilized the guidance provided by the General Counsel's prior memos (August 2011, January 2012, and May 2012) to invalidate many provisions in Costco's policies regarding social media use as well as the communication of confidential information and defamatory statements.

In particular, the NLRB found that many of Costco's policies violated the NLRA because the language could be reasonably construed to infringe upon the right of both union and non-union employees to engage in protected concerted activity and discuss wages, hours and working conditions.

Specifically, the NLRB held that Costco's social media policy in its nationwide handbook for non-union employees that prohibited employees from electronically posting statements that could "damage the Company… or damage any person's reputation" was overly broad.

The NLRB determined that this language could be reasonably interpreted to chill the rights of employees to engage in protected concerted activity under Section 7 and prohibit negative statements about how Costco treated its employees.

The NLRB noted that the policy did not suggest that protected communications would be excluded from the broad parameters of the rule and did not present "accompanying language" and examples that would restrict the rule to non-protected statements or to conduct that was "malicious, abusive or unlawful."

The NLRB also invalidated provisions in Costco's policies that prohibited employees from sharing "sensitive information such as membership, payroll, confidential financial, credit card numbers social security number or employee personal health information" as well as "confidential information such as employee names, phone numbers, addresses and email addresses."

The NLRB also struck down another provision that prohibited the "unauthorized posting, distribution, removal or alteration of any material on Company property" or the discussion of "private matters" of other employees with regard to "sick calls, leaves of absence, FMLA call-outs, ADA accommodations, workers' compensation injuries [and] personal health information" based on the fact that it infringed upon employee rights and restricted how employees could distribute union and other employee related materials.

However, the NLRB failed to provide much more in the way of meaningful guidance to employers with regard to exactly what will be found invalid with regard to social media policies.

As a result of this decision, employers should use extreme caution when implementing policies regarding social media use by employees and avoid broad and ambiguous language that could be reasonably interpreted to interfere with the employee right to engage in protected concerted activity.

It is important to note that employees in both union and non-union workplaces are guaranteed the right under Section 7 of the NLRA to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. In fact, the case at issue involved a handbook for non-union employees.

Thus, it is advisable for employers to narrowly draft social media policies and use specific examples of prohibited conduct whenever possible in order to show that the employer is not trying to interfere with employee rights, but instead trying to protect the employer's legitimate business interests in curbing harassing and defamatory comments and protecting the employer's valid trade secrets and confidential information. In fact, the NLRB cited a lack of specific examples as one of the primary reasons for striking down the allegedly broad policy provisions.

As demonstrated by this case and others, the NLRB has shown a clear willingness to declare workplace policies and practices unlawful even when no actual unfair labor practice occurred and there was only a slight chance that employee rights may be violated. Lastly, employers should make sure to stay abreast of the rapid changes in the law with regard to social media use and communications and make sure that their workplace policies are compliant.