Labor Board rules on social media policy issues

In a recent decision (Costco Wholesale Corp. and United Food and Commercial Workers Union, Local 371 358 NLRB No. 106 (2012)), the National Labor Relations Board (NLRB) issued its first ruling on an employer's social media policy. Even though the NLRB General Counsel's Office has issued opinions on employer's social media policies and how they implicate Section 7 rights, this is the first time the full board has examined the issue. Not surprisingly, the board has adopted its General Counsel's advice. The National Labor Relations Act (NLRA) Section 7 provides that employees, both unionized and non-unionized, have the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection," including discussions among employees regarding wages and working conditions. The NLRB stated that Costco's policy prohibiting employees from making statements on electronic message boards or websites that could defame or damage the company or any person's reputation could be reasonably interpreted by an employee to prohibit them from "engaging in certain protected communications ( i.e., those that are critical of [Costco] or its agents.)" In accordance with the General Counsel's advice, such language would allow employees to reasonably assume it pertains to certain protected activities, including discussing information regarding the terms and conditions of their employment and therefore is unlawful. Employment attorney Patricia Nemeth, of Detroit-based employment law firm Nemeth Burwell PC, says this is a sign the NLRB will likely be following the critical approach established by NLRB acting General Counsel Lafe Solomon. In three different reports, Solomon outlined his interpretation of how the NLRA should be interpreted with respect to social media policies. "Now that the NLRB has issued a decision, it affirms the approach the NLRB will likely take in future cases. Employers should consider this as a warning and should review their current policies and make changes if necessary," states Nemeth. Published: Fri, Sep 28, 2012

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