First NLRB Decisions on Social Media Give Employers Cause to Update Policies, Practices Authors: Ellen Connelly Cohen, Rebecca Carr Rizzo, Christine Nicolaides Kearns
The National Labor Relations Board (“NLRB”) recently issued its first two rulings on employer social media policies and its first ruling on an employee’s termination due to posts on Facebook. These rulings are significant for all employers – not just those with unionized workforces – because they provide guidance regarding what social media behaviors will be deemed protected activity under the National Labor Relations Act (“NLRA”) and, therefore, what employers can and cannot regulate in their policies and practices.
The NLRA protects employees’ rights to engage in “concerted activity” for the purpose of collective bargaining, or for other mutual aid or protection (Section 7) and prohibits employers from interfering with, restraining, or coercing employees who are exercising rights guaranteed under Section 7 (Section 8). The Acting General Counsel of the NLRB, the government agency that investigates and remedies unfair labor practices, has made litigation of NLRA claims involving social media a priority. Many employers assume – mistakenly – that the NLRA and NLRB are relevant only if their workforce is unionized. To the contrary, the NLRA covers all private employers that have an impact on interstate commerce (with certain exceptions, such as public employers and railways) – approximately six million private employers nationwide. The NLRA’s reach is expansive, and when the NLRB determines that an employer’s policy inhibits activity protected by the NLRA, all private employers would do well to pay attention.
The Acting General Counsel of the NLRB has issued guidance memoranda concerning social media, and various NLRB administrative law judges have issued opinions in social media cases, but until now, the NLRB itself had never handed down a decision analyzing social media policies or addressing when an employee can be fired for his or her posts on Facebook. However, in September 2012, the NLRB issued two such decisions: Costco Wholesale Corp., 358 NLRB No. 106 (Sept. 7, 2012) and Karl Knauz Motors, Inc., 358 NLRB No. 164 (Sept. 28, 2012).The Costco Decision
In the Costco case, the NLRB examined Costco’s social media policy, which provided in relevant part:
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 Costco’s Employee Agreement, may be subject to discipline, up to and including termination of employment.
Reversing the administrative law judge, the NLRB rejected this policy as violating Section 8 of the NLRA because it was overbroad and “would reasonably tend to chill employees” in the exercise of their rights to engage in “concerted activity” as set forth in Section 7 of the NLRA.
The NLRB explained that where a challenged rule or policy does not explicitly restrict Section 7 rights (as was the case with Costco), the violation is dependent upon a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rules had been applied to restrict the exercise of Section 7 rights.
The NLRB found that, in Costco’s case, employees could reasonably conclude that the social media policy prohibited them from engaging in protected communications because the policy contained a broad prohibition that “clearly encompasses concerted communications” protesting Costco’s treatment of its employees and contained no language excluding protected communications.
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