The NLRB has made it very difficult for employers when it comes to social media. To its credit though, it has been trying to help by providing guidance reports The most recent report, provided in May, required a level of specificity that caused some consternation.
The case is Costco Wholesale Corporation and United Food and Commercial Workers Union, Local 371, September 7, 2012. 358 NLRB No. 106. A portion of the opinion involves social media, a portion does not. I will only focus on the part that focuses on social media.
To put the case in context, it was not argued that any of the rules, “were promulgated in response to union activity or that any of the rules have applied to restrict the exercise of Section 7 rights.” Therefore, the issue is whether the rule(s), “explicitly restricts Section 7 activity and/or whether the employees would reasonably construe the language to prohibit Section 7 activity.” This gets us to the main issue that a lot of employers and their attorneys are having right now. How to draft a social media policy that is sufficiently broad to cover the issues it needs to cover to protect the employer and its employees, while also being narrow enough to avoid interfering with Section 7 rights.
Damage Company or Person’s Reputation
The NLRB disagreed with the initial judge’s view that a prohibition on posting information that could damage the company or a person’s reputation was acceptable. The language in question stated:
“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 [to]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.”
In the initial decision, “[t]he judge…found that employees would reasonably infer that the Respondent’s purpose in promulgating the rule was to ensure a ‘civil and decent workplace.'”
However, the NLRB disagreed and found that the, “employees would reasonably construe this rule as one that prohibits Section 7 activity.” In its analysis, the NLRB examined, “whether the rule would reasonably tend to chill employees in the exercise of their Section 7 rights.” While the NLRB noted that the “rule does not explicitly reference Section 7 activity,” it is so broad that it “clearly encompasses concerted communications protesting the Respondent’s treatment of its employees.” There is, the NLRB noted, no part of the rule that provides for protection for employee’s rightful communications. Therefore, employees would be left with no choice but to “conclude that the rule requires them to refrain from engaging in certain protected communications (i.e. those that are critical of the Respondent or its agents.”
Appropriate Business Decorum
On the other hand, requiring employees to maintain “‘appropriate business decorum'” in communicating with others is acceptable.
The language in question is as follows:
“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:
- Every employee is responsible for ensuring that all information relating to Costco, its members, suppliers, employees, and operations is secure, kept in confidence, and not disseminated or misused.
- 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.
- Sensitive information such as membership, payroll, confidential financial, credit card numbers, social security numbers, or employee personal health information may not be shared, transmitted, or stored for personal or public use without prior management approval. Additionally, unauthorized removal of confidential material from Company premised is prohibited.”
In its analysis the NLRB notes that the majority opinion in related cases does not require the employer to “define permissible conduct and clarify for employees that the rule does not prohibit employees from engaging in Section 7 activities.” I would note, however, that this level of specificity seem to be what the NLRB is requesting, as I explained in my analysis of the May guidance report.
Regardless, in this decision the NLRB finds that in cases analyzing similar rules, it was found that “reasonable employees would not infer that the rules restrict Section 7 activity.”
In the case of the damage rule, the NLRB recommended that Costco, “cease and desist…and take affirmative action designed to effectuate the purposes and policies of the Act.” In other words, stop enforcing the unlawful aspects of the rule, and either get rid of them or rewrite them until they are appropriate under the law. Costco is also required to post a notice detailing that the NLRB found it violated Federal labor law and that reinforces employee rights under the law.