Between summer 2011 and spring 2012, the National Labor Relations Board’s (NLRB) Acting General Counsel drew substantial attention in his direction by publishing three lengthy Advice Memos, which expressed his views on the application of the National Labor Relations Act (NLRA) to social media policy provisions and employers’ discipline based on employees’ personal social media content. These memoranda, however, revealed only the litigation positions that the NLRB’s cadre of enforcement attorneys would take in this new and evolving area of the law. The views expressed in the memos did not, and do not, bind the Board. Last week, however, the Board issued an opinion, which, albeit not analyzing the employer’s social media policy per se, revealed the Board’s thinking on several employment policies commonly found in employers’ social media policies. Costco Wholesale Corporation, 358 N.L.R.B. No. 106 (Sept. 7, 2012).
Policy Prohibiting Damaging Statements about About the Company or Its Employees
No employer likes to see its own employees publicly post content damaging to the employer or any member of its workforce. The Board, however, ruled that employers generally cannot prohibit such speech because the prohibition would violate Section 7 of the NLRA by chilling employees from publicly commenting about the terms or conditions of employment. More specifically, the Board held that the following policy language violates the NLRA: “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 . . . may be subject to discipline . . . .”
Significantly, in disapproving this policy language, the Board suggested policy language that would be permissible. The Board cited to prior decisions that approved prohibitions on speech that is: (a) “malicious, abusive or unlawful;” (b) “profane language” and “harassment;” (c) “injurious, offensive, threatening, intimidating, coercing, or interfering with” other employees; and (d) “slanderous or detrimental to the company” when “among a list of 19 rules which prohibited egregious conduct such as ‘sabotage or sexual or racial harassment’.” (Emphasis supplied)
The critical take away for employers is that social media policy provisions that prohibit damaging or defamatory speech must be contained within a list of categories of speech that unequivocally are not protected under the NLRA. The Board would presumably then read the language prohibiting defamation in its context and conclude that no reasonable employee would understand the policy to prohibit true, or inadvertently false, statements about the terms or conditions of employment, which the NLRA protects.Continue Reading...