September 20, 2012
As Predicted, NLRB Issues First Social Media Decision Consistent with Recent GC Memos
On September 7, 2012, in Costco Whole Corp., the NLRB found unlawful Costco’s electronic posting rule which prohibited employees from electronically posting statements that “damage the Company . . . or damage any person’s reputation.” As we have previously written, the NLRB’s Acting General Counsel issued three memoranda in the past year outlining the GC's view of unlawful social media policies. The Costco decision makes clear that the Board agrees with the GC’s views and will adopt many of the principles from the GC’s memoranda in deciding social media cases. In assessing whether a workplace rule such as Costco’s electronic posting rule violates the NLRA, the Board considers whether the rule would reasonably tend to “chill” employees in the exercise of their Section 7 rights. If the rule on its face restricts Section 7 rights, it is clearly unlawful. If the rule does not explicitly prohibit Section 7 activity, the NLRB determines whether (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 rule has been applied to restrict the exercise of Section 7 rights. Applying these criteria in Costco, the Board found that employees would reasonably construe the electronic posting rule as prohibiting Section 7 protected activity because communications which could “damage the Company . . . or damage any person’s reputation” clearly encompass concerted communications, e.g., protests over Costco’s workplace conditions or treatment of employees, and because there was nothing in the rule suggesting that Section 7 protected communications were excluded. The Costco case is just the first of what we expect will be many NLRB decisions striking down employers’ social media policies as unlawful under the NLRA. The GC’s recent memoranda concerning social media are useful indicators of how the Board will decide future cases. After Costco, both unionized and non-unionized employers are on notice that the NLRB will apply case law principles developed outside the social media context concerning protected communications to cases involving employees’ electronic communications, and that in many instances not view these electronic communications as being any different than traditional office “water cooler” talk. If you have any questions or for further information about implementing and enforcing lawful social media policies, please contact Douglas E. Solomon, Esq., firstname.lastname@example.org, or Douglas J. Klein, Esq., email@example.com, in the Labor Law Practice Group.