NLRB Finally Delivers Knockout Blow to Broad Employer Social Media Policies
In what has been perhaps the most telegraphed wind-up punch to hit employers in some time, the National Labor Relations Board (NLRB) has finally weighed in on the issue of employer social media policies.
Specifically, on September 7, the NLRB issued its Order striking down Costco Wholesale Corporation’s social media policy and related electronic posting employee policy. The Costco decision has been a long time in the making with the actual time line as follows:
- On August 2011, the NLRB's acting General Counsel Lafe Solomon first signaled that the NLRB would be entering the fray of employment and social media fray back when the NLRB's first social media report was issued. The NLRB's August Social Media report is available here.
- This report was followed up in January 2012 when Mr. Solomon issued a second social media report. See NLRB Releases Second Social Media Advisory Report: What It Means for Employers for a copy of this second Social Media Report.
- In May 2012 On May 30, 2012, the NLRB's general counsel's third and final social media report was issued, which examined seven cases involving policies governing the use of social media by employees.
If there was any doubt as to what direction the actual NLRB would take when it came to employer social media policies, the Costco decision put that doubt down for the count when it invalidated Costco's social media employee policy found in its handbook that prohibited employees from making statements that “damage the Company, defame any individual or damage any person’s reputation.”
What Does the NLRB's Striking a Company's Social Media Policy Mean for Employers
For employers and HR professionals, the NLRB's full body of work pertaining to employer social media policies is worth analyzing. But employers should definitely take away the following from the NLRB's decision to invalidate Costco's social media policy:
First, Section 7 of the National Labor Relations Act applies to all employees—unionized and non-unionized—the right to engage in protected “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” A broad employer social media policy that comes within an area code of infringing or discouraging employee rights under Section 7 of the NLRA exposes the employer to coming under fire from the NLRB.
In this regard, the NLRB was specifically critical of Costco’s social media policy because it “does not present accompanying language that would tend to restrict its application.”
This brings up the second take-away; Employers should include a "savings clause" or express disclaimer that protected Section 7 communications are excluded from the employer's social media policy - no matter how broadly the policy may be read.
While not a silver-bullet, a "savings clause" or exclusionary clause carving out Section 7 rights from an employer's social media policy was specifically lacking in Costco's policy.
Indeed, there is nothing in the rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule ... [Costco] does not present accompanying language that would tend to restrict [the social media policy rule's] application.
Accordingly, a provision carving out Section 7 rights from an employer's social media policy would tend to put employees on notice that the policy's application is not intended to inhibit protected employee activity under Section 7, which include rights to unionize, collectively bargain, and strike.
Next Actions for Employers When it Comes to Social Media Policies
Both union and non-unionized employers need to be prepared to avoid round two now that the NLRB's stance on social media policies is firmly established as set forth in the Costco decision. Accordingly, employers should carefully review their social media policies and employee policies to ensure that they do not contain “broad” prohibitions that are unlikely to survive NLRB scrutiny.