On September 7, 2012, the National Labor Relations Board (NLRB) issued its first decision concerning an employer’s social media policy, reasoning that a general prohibition on what employees can say online violates Section 7 of the National Labor Relations Act (NLRA). An administrative law judge had determined that Costco Wholesale Corp.’s policy prohibiting employees from electronically posting statements that “damage the Company . . . or damage any person’s reputation” was permissible under the NLRA. Rather than a specialized criteria for social media use restrictions, the NLRB simply applied traditional principles in determining whether such restrictions inhibit employee rights under the NLRA. Declining to adopt the judge’s recommendation, the NLRB reasoned that Costco employees “would reasonably construe this policy as one that prohibits Section 7 activity,” explaining that the policy “clearly encompasses concerted communications protesting [Costco’s] treatment of its employees.” Still, the NLRB may have provided a glimmer of hope that a savings clause or a disclaimer could have been used to allow the policy to stand—“there is nothing in the rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule.” Distinguishing authority relied upon by the administrative law judge, the NLRB also noted that Costco’s general prohibition was not given with any context that could have allowed its employees to reasonably construe a more restrictive application of the rule.
In light of the NLRB’s decision, employers should review their policies and confirm they do not contain a general prohibition on employee social media use. Providing employees with specific examples of what the policy is meant to restrict would likely help show that the policy does not violate the NLRA. For instance, a policy could explain that social media use restrictions are meant to prevent disclosure of trade secrets or other confidential information, like that covered by the Health Insurance Portability and Accountability Act. Such examples should also provide employees with some context for the use restrictions, demonstrating that employees should reasonably construe a more restrictive application of the policy that would exclude protected activity under Section 7 of the NLRA. Additionally, employers may be able to craft a savings clause or disclaimer in their policy, providing that protected activity afforded under the NLRA is explicitly excluded from any restrictions contained within the policy. In any event, employers should review their policies to assure compliance with the NLRB’s first decision on social media use restrictions.
Click here for a copy of the decision.