NLRB Issues First Social Media Decision (And It Looks Very Familiar)

Earlier this month, the National Labor Relations Board rejected Costco’s social media policy, which prohibited employees from posting statements that “damage the Company … or damage any person’s reputation.” Denise Keyser and Mary Cate Gordon of law firm Ballard Spahr explain:

“The Board found the policy overly broad, concluding that it reasonably could be interpreted to ‘chill’ employee exercise of the right to engage in ‘protected, concerted activity’ (such as the right to protest working conditions or address other work-related issues), a right guaranteed to union and non- union workers alike through the National Labor Relations Act.”

It’s the first ruling on social media published by the full Board following three reports from the Acting General Counsel, and numerous opinions issued by Administrative Law Judges, on the same topic over the past year. And – perhaps not surprisingly – the position adopted by the Board in Costco varies little from the path laid out so far by its individual members.

For your reference, three takeaways:

1. Policies without specific examples of improper activity will be rejected:

“In light of the decision, employers can expect the Board to be critical of social media policies that contain broad prohibitions on actions or statements about workplace concerns that do not include examples of the postings the employer may permissibly target. Such examples include defamatory or sexually harassing comments, or the disclosure of an employer’s trade secrets.” (Ballard Spahr)

2. The NLRB isn’t allowing much room for interpretation:

“… the Board concluded that several of Costco’s policies governing the disclosure of ‘confidential’ information – including ‘payroll,’ employee contact information, and ‘all information relating to Costco and its employees’ – unlawfully chilled discussions regarding wages, hours, and other terms and conditions of employment… Much to the chagrin of many in the business community, Costco does not develop any social media-specific guidance or appear to recognize the very different potential impact on an employer’s operations of a disparaging statement made on the Internet as opposed to one made at the workplace water cooler.” (Miller Canfield)

3. Policy violations will be cited even when no actual unfair labor practices took place:

“In Costco Wholesale Corp… the Board found some provisions of the employer’s handbook to be violative of the Act. Again, no surprise at the finding. What is surprising is that apparently there were several other allegations raised in the charge and at the hearing about alleged unfair labor practices committed during an organizing drive that were all dismissed for lacking merit.” (Proskauer)

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