As any regular reader of this blog knows, the National Labor Relations Board (NLRB) has been paying a good deal of attention to social media recently.

One of the particular issues which the Board has focused on in this area surrounds the legality of employer discipline for social media postings under the National Labor Relations Act (NLRA).  Their attention here, for all intents and purposes, commenced about 18 months ago with an Administrative Law Judge’s decision which found that employees had engaged in protected, concerted activity when posting critical comments on Facebook about a coworker.  We discussed that case here.

Another application of the Board’s keen eye in this area over the last year or so has been its examination of the legality of employer social media policies under the Act.  Mainly, this has come through guidance issued by the NLRB’s General Counsel, which can be found here.  Notably, however, despite all of the attention which the Board gave social media policies in that guidance, it had yet to publish a full Board decision on the legality of an employer’s rules relating to social media.

Until now.

On September 7, 2012, the NLRB issued a decision in Costco Wholesale Corporation and United Food and Commercial Workers Union, Local 371.  In the case, the Board concluded that a number of fairly typical employment policies and procedures – including those related to social media – were impermissible under the Act. 

For example, Costco’s policies required that all employees comply with the Costco Employment Agreement when engaging in electronic communications.  Specifically, that policy provided that “statements posted electronically (such as [to] online message boards or discussion groups) 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 of employment.” 

The NLRB found that this policy was impermissible because it “clearly encompasses” concerted communications protesting Costco’s treatment of its employees.  In other words, the Board felt it prohibited employees from complaining about working conditions.

In addition to invalidating that language, the NLRB also found violative of the Act Costco’s policy which prohibited employees from discussing “private matters of members and other employees,” including “sick calls, leaves of absence, FMLA callouts, ADA accommodations, workers’ compensation injuries, personal health information, etc.”  The NLRB found that this rule also unlawfully prevented employees from discussing the terms and conditions of employment. 

Significantly, the NLRB noted that the Costco policy failed to include any language that suggested that communications protected by the NLRA were not subject to the policy.  However, the decision did not go so far as to say that a disclaimer would save such a policy.  Remember, the Board’s General Counsel has stated in the past that such a disclaimer would not save a policy from violating the Act.

While the Board didn’t invalidate all of Costco’s work rules, the upshot of the opinion is that the Board has now come out and demonstrated that it is going to fall mostly lockstep behind the previous guidance its General Counsel provided on the legality of these policies.  Vague, ambiguous social media policies which could reasonably be construed by employees as prohibiting them from discussing their wages, hours and other terms and conditions of employment likely will be found to violate the Act. 

Worse, the Board isn’t just taking an activist role in applying that standard to social media policies.  They are beginning to apply it to all employer policies, many of which have been historically written in a broad manner to protect employer rights.   This even includes at-will disclaimers, which we discussed here.  Therefore, as a result of the Costco decision, employers should take a careful look at their employment policies – including but not limited to those regulating social media – to evaluate whether or not they could be construed to reasonably interfere with rights employees have to discuss their terms and conditions of employment with each other.

Remember, those rights apply not just in the workplace, but on-line, too.  Moreover, they apply in your work environment whether or not you have a union.  Many employers still don’t know that obligations under the National Labor Relations Act apply to them even if a union isn’t in place.

With this decision, employers now – and finally – have a more definitive legal authority they can rely on for guidance in this area, even if the result isn’t ideal for them.  While it’s good to know the Board is at least acting consistently, the attention employers need to give to their work rules and policies is now greater than ever before.  Certainly, consulting competent counsel for assistance when that’s necessary is never a bad idea.

Joseph Leonoro concentrates his practice in matters involving labor and employment law.
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