In its first decision addressing the validity of an employer's social media policy, the National Labor Relations Board ("NLRB") recently invalidated Costco's handbook policy that prohibited employees from electronically posting messages that "damage the Company, defame any individual or damage any person's reputation." See Costco Wholesale Corp., 358 NLRB No. 106. The NLRB found that Costco's employees could reasonably construe the policy as regulating and chilling their right to engage in protected, concerted activity. The NLRB reasoned that "employees would reasonably conclude that the rule requires them to refrain from engaging in certain protected communications (i.e., those that are critical of the Respondent or its agents)."
The NLRB's Costco decision comes on the heels of and aligns with Acting General Counsel Lafe Solomon's prior reports on social media policies, which we reported on in August 2011, February 2012, and June 2012. The decision also serves as a reminder to employers to review the scope of their social media policies and to carefully analyze how they may be construed. The NLRB will likely continue to scrutinize overbroad employer policies and handbooks in an effort to invalidate those that it deems to violate employee rights under the National Labor Relations Act.