NLRB Issues First Social Media Decision – What Does this Mean?

Social Media is a new frontier in cyber law.  It is impacted by a variety of regulations such as labor laws, internet law, IP law, etc. Recently the intersection between labor law and social media has impacted corporate policy. Many companies dove head first into the social media craze when they realized the potential marketing impact. Many realizing much later that they needed to regulate use by employees and some not realizing at all. Many of the social media policies created violated employment law namely the National Labor Relations Act (“NLRA”).

Over the last year the National Labor Relation Board (“NLRB”) Acting General Counsel issued a series of memos that provided insight into its interpretation of how the NLRA applies to social media policies. 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).  The ruling was pretty consistent with the recommendations for the NLRB memos which highlighted a need for specificity and examples.

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.

The NLRB found that employees would reasonably construe the rule as prohibiting Section 7 activity. More 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 NLRB also found the rule requiring employees to use “appropriate business decorum” was lawful under the NLRA, which is good news for employers.

Employers following this opinion should note it affirms that context and specificity play an important role in whether a policy is considered lawful under the NLRA.  Policy’s are evaluated as a whole so employers must be aware of how each section works together. I encourage Employers to pay close attention to NLRB recommendations and all relevant state & federal regulations as you craft your social media policy.

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