As readers of this blog know, the National Labor Relations Board’s Acting General Counsel has had employer social media policies in his proverbial crosshairs for the past 18 months. Over that time period, the Acting General Counsel issued three Reports outlining his views on the legality of employer social media policies, generally finding them to be unlawful when the policy used generalized language to prohibit employees from making critical remarks or disclosing confidential information on social media sites. While these guidance memoranda are instructive, they are not binding on employers.
On September 7, 2012, that changed when the NLRB itself (not the Acting General Counsel) issued a decision striking down several social media policies that were set out in Costco’s employee handbook. Costco Wholesale Corporation, 358 NLRB No. 106 (2012). One of the policies in the handbook stated:
“Employees should be aware that statements posted electronically (such as online message boards or discussion groups) that damage the Company, defame any individual, or damage any person’s reputation … may be subject to discipline, up to an including termination of employment.”
The Board found this policy to be an overly broad restriction of employee rights under Section 7 of the National Labor Relations Act. Finding that the “broad prohibition… clearly encompasses concerted communications protesting [Costco’s] treatment of it employees,” the Board concluded that “employees would reasonably conclude that the rule requires them to refrain from engaging in certain protected communications.” As a result, the policy violated §8(a)(1) of the NLRA, and Costco was required to revise and reissue its social media policy.
The Board’s decision in Costco is troubling. Not only does it signal that the Board has fully adopted the reasoning of the Assistant General Counsel and begun to apply it to pending cases, it also shows how broadly the Board defines protected activity. Under the Board’s logic, even defamatory statements about company officials cannot be subject to discipline. With this kind of logic emanating from the NLRB, employers are going to have an increasing difficult time regulating the “new frontier” of social media while remaining within the ever-changing confines of the NLRA.
By Eric Paltell