September 24, 2012
NLRB Decision Invalidates Employer's Policy Regarding Social Media
Most employers and employers' lawyers already know that the National Labor Relations Board (NLRB) has been actively seeking to place restrictions upon employers' policies which limit employees' use of social media sites. For example, the infamous "Facebook Firing" case made national headlines a couple of years ago. However, the "Facebook Firing" case was settled before it was finally resolved. While the NLRB has issued several "advisory" reports outlining its positions regarding employment policies involving social media, it had not formally decided a case until September 7, 2012.
The case decided on September 7, 2012 was Costco Wholesale Corp. and United Food and Commercial Workers Union, Local 371, Case No. 34-CA-012421. In this case, the employer had a policy which generally prohibited employees from making electronic postings on social media sites which "damage the Company, defame any individual or damage any person's reputation." The NLRB found that this policy violated Section 7 of the NLRA because it would tend to "chill" employees from exercising protected rights of "concerted activities," since the prohibition "clearly encompasses concerted communications protesting [the employer's] treatment of its employees."
The employer was ordered to stop using the policy, to notify all employees that the policy had been found in violation, and to take several other affirmative acts.
This decision will likely cause employers more confusion regarding what can be included in their social media policies (particularly when combined with the NLRB's advisory reports from May, 2012).