NLRB issues first social media decision

Arnstein & Lehr attorney Jesse R. Dill

Jesse R. Dill

For those following social media and labor law, this month was noteworthy as the National Labor Relations Board issued its first decision taking on an employer’s social media policy in Costco Wholesale Corp., 358 NLRB No. 106 (2012). You may recall that over the last year the NLRB Acting General Counsel issued a series of memoranda that provided insight into its interpretation of how the NLRA applies to social media policies and it would prosecute such cases. You can read more about the memos here and here.

In Costco Wholesale Corp., the development of this area of the law took another step forward when the NLRB issued its first decision and order following an Administrative Law Judge’s recommendation. Costco’s “Electronic Communications and Technology Policy” stated:

Costco recognizes the benefits associated with electronic communications for business use. All employees are responsible for communicating with appropriate business decorum whether by means of e-mail, the Internet, hard-copy in conversation, or using other technology or electronic means. Misuse or excessive personal use of Costco technology or electronic communications is a violation of Company policy for which you may be disciplined up to and including termination of employment. Your use of Costco technology and electronic communication systems represents your agreement with the following policies:
. . .

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 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 of employment.

There was a bit of good news for employers. The NLRB found the rule requiring employees to use “appropriate business decorum” was lawful under the NLRA. That’s the good news.

The NLRB disagreed with the ALJ’s recommendation and found the portion of the policy prohibiting statements that damage the company or another individual’s reputation violated Section 8(a)(1) of the NLRA. In contrast with the ALJ, the NLRB found that employees would reasonably construe the rule as prohibiting Section 7 activity. Specifically, the NLRB found the “broad” prohibitions against damage to the Company or another individual’s reputation included communications by employees that protest how the employer treated its employees. The opinion also distinguished other cases relied upon by the ALJ to find the policy lawful as including greater contextual detail than was apparent with Costco’s policy. Where other policies contained similarly broad language, they included rules that addressed conduct that was not protected by the NLRA, such as “verbal abuse,” “harassment,” and “conduct which is injurious, offensive, threatening, intimidating, coercing, or interfering with” others. For the NLRB, there was no other language surrounding the policy at issue that could reasonably restrict its application to activity not protected by the NLRA.

Employers following this opinion should note it affirms that context and specificity play an important role in whether the General Counsel, and now the NLRB, considers a policy to be lawful under the NLRA. Although this is unlikely to be the last word on this issue, addressing these issues in your policy may redirect the NLRB’s attention away from your policy. Higher courts or future NLRB members may take issue with the opinion’s conclusion that employees would reasonably construe this rule as one that prohibits Section 7 activity as the analysis to this point seems speculative and largely unsupported.

This opinion also continues to highlight the concerns all employers should have in complying with the NLRA. These social media issues, along with other efforts in recent years, demonstrate that the NLRB is trying to flex its muscle more and more outside of strictly organizational concerns. Ensuring your policies comply with these requirements, which may not seemingly be as prevalent of a concern for your workplace, is important because you may be the target of a complaint whether your workforce is organized or not. Employers concerned over whether their policies comply with the NLRA should consult counsel well-versed in this area of the law.

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