NLRB Issues First Social Media Policy Ruling

The National Labor Relations Board has issued its first decision on an employer’s social media policy. The NLRB held that Costco Wholesale Club’s social media policy was overbroad and could infringe upon workers’ rights under the National Labor Relations Act. Costco Wholesale Corp. (NLRB 2012). This decision is not surprising given the contents of three reports from Acting General Counsel Lafe Solomon released over the last year. These reports analyzed employer social media policies in the context of the NLRB’s more agressive stance towards employers.  

Costco’s policy said, “Any communication transmitted, stored, or displayed electronically must comply with the policies outlined in the Costco Employee Agreement. Employees should be aware that statements posted electronically (such as [to] online message boards or discussion groups) 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.”

The NLRB took issue with the portion of the policy prohibiting statements that “damage the Company, defame any individual or damage any person’s reputation.” The NLRB said that this broad prohibition could chill employees’ exercise of their right to engage in protected, concerted activity. For example, an online statement posted by employees saying that they felt underpaid could potentially damage the company, but would be protected under federal law. The NLRB also found missing from the policy “accompanying language that would tend to restrict its application” to conduct that was not protected.  

This decision is a reminder to employers to narrowly tailor their social media policies to exclude employee protected, concerted activity. MSEC can help you customize your policy. See our Employee Use of Social Media legal and administrative considerations and samples at MSEC.org.