Just when we thought the National Labor Relations Board (“NLRB”) had been noticeably quiet on the social media front, it came out with a ruling that has brought our attention back to the issue of “troublesome” employee policy language.
In the recent Costco decision, the NLRB found that portions of Costco’s employee handbook violated the National Labor Relations Act. Specifically, the Board found the following language unlawful:
“Employees should be aware that statements posted electronically … 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.”
While the administrative law judge who originally heard the case upheld the language as simply ensuring a “civil and decent workplace,” the NLRB disagreed finding the provision overbroad and “clearly” encompassing protected activity such as protesting the company’s treatment of employees.
The ruling is consistent with the NLRB’s Acting General Counsel’s memoranda issued in the last year. (See e.g. NLRB Issues New Report on Facebook Firings, Why is the NLRB so Interested in Social Media?)
Perhaps Costco should have taken some advice from Wal-Mart. The NLRB found Wal-Mart’s social media policy lawful – in its entirety – earlier this year. (See Lawful or Unlawful? A Question of Nuance and Context.)
Wal-Mart, instead of prohibiting employees from “damage[ing] the Company, defam[ing] any individual or damage[ing] any person’s reputation,” reframed the issue in a more positive (and, to the NLRB, acceptable) light by, for example, telling employees to “make sure you are always honest and accurate.” Similarly, instead of prohibiting “defamation,” which is a legal term, Wal-Mart’s policy instead uses plain English: “never post any information or rumors that you know to be false ….”
Simply put, word choice matters. It seems to us that while the Costco case did not break any new ground, it does serve as a reminder that if you haven’t re-tooled your employee policies in a while, you should do so sooner rather than later.