Am I the only blogger who has a problem with social media? My twelve year old is addicted to his smart phone and Instagram. I constantly get poked from Facebook users. I read with dismay how administrative law judges interpreting the National Labor Relations Act (NLRA) have invalidated employers’ efforts to place some limits on the use of social media by employees. We have blogged extensively on interpretations of the NLRA that give employees a free hand to criticize their employers and managers on the worldwide web. Now, the National Labor Relations Board (NLRB) has issued its first social media decision — Costco Wholesale Corporation.
Costco’s employee handbook included a policy that stated: “Employees should be aware 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 administrative law judge who first reviewed the policy statement concluded that employees would reasonably infer that Costco’s purpose was to ensure a “civil and decent workplace.” The NLRB disagreed. The NLRB found that employees would reasonably construe the rule as one that prohibits them from exercising their rights under Section 7 of the NLRA.
Section 7 of the NLRA guarantees employees’ rights to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. A workplace rule that explicitly restricts Section 7 rights is unlawful. If a rule does not explicitly restrict Section 7 rights, it will still be unlawful if (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. The NLRB determined that the Costco policy infringed upon employees’ Section 7 rights because it “encompasses concerted communications protesting [Costco’s] treatment of its employees.” In the NLRB’s opinion, the Costco rule had a reasonable tendency to inhibit employees’ protected activity, such as being critical of Costco or its management. The policy therefore violated the NLRA.
It is clear that the current NLRB will continue to invalidate social media policies it views as overly broad. If a policy can be construed as even remotely “chilling” an employee from exercising his or her right to criticize working conditions, pay, and other workplace issues, the NLRB will invalidate the policy. The current enforcement environment compels employers to adopt narrowly defined social media policies that only prohibit actions such as defamatory remarks, unlawful harassing behavior, and disclosure of trade secrets.