NLRB: Employer’s Overbroad Social Media Policy Violates Employees’ Rights

In its first decision involving an employer’s social media policy, the National Labor Relations Board (Board) found that an employer's policy violated employees’ rights under the National Labor Relations Act. The Board reasoned that the policy was written in overly general terms and therefore had “a reasonable tendency to inhibit employees’ protected activity.” This decision follows a series of social media reports issued by the Board over the past year, and appears to confirm what many employers had feared based upon those reports: the Board appears ready to reject all broad prohibitions on what employees may say online.

In the case, Costco Wholesale Corp., 3558 NLRB No. 106 (Sep. 7, 2012), the Employer’s Handbook contained a section entitled “Electronic Communications and Technology Policy,” which provided that:

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 [Handbook], may be subject to discipline up to and including termination of employment.

The Board's General Counsel took issue with the prohibition on “statements posted electronically that … damage any person’s reputation,” arguing that the policy could reasonably be viewed as prohibiting “protected activities” under the Act, such as online communications critical of the employer’s treatment of employees. The administrative law judge rejected that argument, finding instead that the policy was of a lawful nature intended to promote “a civil and decent workplace,” and that no reasonable employee would construe it to prohibit protected communications.

On appeal from the judge’s decision, the Board reversed and found the employer's social media policy unlawful. The Board specifically found that the policy “clearly” included “concerted communications protesting the Respondent's treatment of its employees” and that there was “nothing in the rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule.” The Board further found that the rule did “not present accompanying language that would tend to restrict its application” and therefore “allow[ed] employees to reasonably assume that it” pertained to “certain protected concerted activities.” The Board ordered the employer to remove or modify its rule “to the extent that it prohibit[ed] employees from making statements that damage the Company or damage any person’s reputation.”

Although this decision appears on its face to be bad news for employers — and it certainly does suggest a challenge for social media policies — there are some helpful lessons to be taken from the Board’s ruling. It should be remembered that the Board did not reject the idea of a social media policy entirely; rather, the Board found aspects of this policy unlawful under a traditional analysis. The Board’s opinion, therefore, suggests that a social media policy which is properly limited and clearly defined would pass muster under the Act. In other words, policies will likely be found permissible as long as, through context or direct statements, they make clear “that protected communications are excluded from the … parameters of the rule.” Employers should, therefore, ensure that their social media policies are narrowly and precisely written to simultaneously prevent unwanted employee communications (e.g., malicious, abusive, confidential, unlawful, or slanderous speech) while also permitting protected activity — even protected activity that damages the company’s reputation.