If you have a provision similar to the one below in any of your employee agreements, handbooks, etc. or are considering including one, make sure you read the rest of this article.
Any communication transmitted, stored or displayed electronically must comply with the policies outlined in {Insert your Company Name} Employee Agreement. Employees should be aware that statements posted electronically (such as [to] online message boards or discussion groups) that damage the Company, defame anyindividual or damage any person’s reputation, or violatethe policies outlined in the {Insert your Company Name} Employee Agreement, may be subject to discipline, up to and including termination of employment.
On September 7, 2012 the National Labor Relations Board (NLRB) issued their first published decision in a case which directly involved a company’s policies relating to electronic communication and social
media. As explained in past articles, over the last two years, there have been numerous complaints involving social media and provisions which limit the information an employee can discuss in electronic forums.
However, previous complaints were settled prior to the NLRB issuing a published decision. In light of the lack of reported decisions, the NLRB General Counsel issued three different advisory memoranda explaining how the Board would most likely decide in different situations.
In Costco Wholesale Corporation and UFCW Local 371, Case 34-CA-012421, the NLRB proved their decisions would follow the stance outlined by their General Counsel in the prior advisory memoranda. The NLRB found Costco violated the National Labor Relations Act (Act) by including the provision above, which prohibits employees from electronically posting statements that “damage the Company … or damage any person’s reputation.” The provision was deemed a violation of the Act because it did not include “accompanying language that would tend to restrict its application.”As explained in further detail in prior articles, an employer cannot maintain a work rule that prohibits employees from exercising their Section 7 rights (i.e. right to concerted activity) or that employees would reasonably construe to prohibit Section 7 activity. The NLRB found that since the provision did not have accompanying language to restrict its applications, it allows employees to “reasonably assume that it pertains to – among other things – certain protected concerted activities, such as communications that are critical of the [Company’s] treatment of its employees.”
The main take away from this new decision is the NLRB is going to construe broad provisions as violations of the Act. Companies need to be specific in their rules and provide examples to ensure it is clear to employees that the company is not prohibiting the rights an employee is guaranteed under the Act, i.e. the right to engage in protected concerted activity. If you have questions about your social media policies, contact our employment team.
