In line with the series of guidelines issued by the Acting General Counsel over the past year, the NLRB has announced its first formal ruling on social media policies, finding that the social media policy of Costco Wholesale Corp. is unlawful because it broadly prohibits online comments “that damage the Company, defame any individual or damage any person’s reputation, or violate the policies” in the employer’s handbook. 358 NLRB No. 106. The case represents the first ruling by the Board on the legality of social media policies, and follows the Acting General Counsel’s admonition that overbroad policy statements will be held unlawful.
The Board observed in its opinion that in the absence of a disclaimer notifying employees that the rule is not intended to restrict the right to engage in protected concerted activities, the broad prohibition on comments that might “damage the Company” is overbroad and unlawful because “employees would reasonably conclude that the rule requires them to refrain from engaging in” communications that are critical of the company or its supervisors despite the fact that the policy does not appear to address or prohibit critical comments about the company. In this respect, the opinion appears to reflect the Board’s approach that policy statements will be judged not by what they purport to prohibit, but by whether employees could reasonably construe them as restricting their right to communicate about terms and conditions of employment. The Board observed that context matters, however, suggesting that employers might avoid liability by inserting appropriate disclaimers in their social media policies or by tying the prohibition to specific examples of egregious conduct such as the use of profane language, abusive or unlawful statements, or comments reflecting sexual or racial harassment.
The Costco opinion highlights the fact that overbroad social media policy restrictions on negative comments will be found to be unlawful by the Board, and that imposing discipline for making such comments might expose employers to unfair labor practice charges – even for non-union workforces – and the potential for wrongful termination claims. As referenced above, some of this risk can be managed by avoiding using overly broad restrictions, by carefully wording your policy to specifically notify employees that their protected rights are not encompassed by the policy restrictions, and by including examples of prohibited activity to provide context to the restrictions imposed. As have the prior guideline memoranda from the Acting General Counsel, this ruling provides a reminder that all businesses should reevaluate both the language and impact of their internet/social media policies with an eye towards these potential areas of risk.