Many employers assume that, given their status as employers at-will, they are permitted to discipline and terminate employees for troublesome postings the employees make on Facebook, Twitter, and other social media. But this assumption is not always true if the employee’s social media posting implicates the employee’s rights under the National Labor Relations Act (“NLRA”), sections of which apply to employees who are not even union members.
Generally speaking, among other provisions, Section 7 of the NLRA prohibits employers from restricting an employee’s right to discuss his or her working conditions. To the extent employees are now engaging in these discussions online through social media, the National Labor Relations Board (“NLRB”) has held that an employee may be exercising his or her protected right to engage in concerted activity when the employee posts, blogs, or tweets online.
Most recently, the NLRB, the agency charged with enforcing the NLRA, issued a decision holding that Costco Wholesale Corp.’s electronic posting rules were overly broad and unenforceable. Among other things, Costco had attempted to ban employees from posting statements online that harmed the company’s reputation, from using or disclosing confidential information (without providing a reasonably detailed definition of that term), and from sharing payroll information. Given that such language is not uncommon in many employee handbooks and company policies, employers need to pay close attention to the Costco decision’s impact on policies containing such statements.
While the Costco decision was the first decision by the NLRB to address the issue of appropriate language in a social media policy, it did not come out of nowhere—over the past two years, the acting counsel of the NLRB has published several reports providing guidance to employers about what types of language would and would not be acceptable in social media policies. In those reports, and in the Costco decision, the NLRB has made clear it will not permit employers to promulgate policies with overly broad language forbidding employees from criticizing their employers. Administrative law judges around the country also have made findings that certain social media policies implemented by employers were improper.
The Costco decision leaves no doubt that those employers who wish to implement a social media policy or who seek to discipline or terminate an employee for his or her online comments should consult with employment counsel first, whether they “like” it or not.