Traps for the Unwary: Social Media Policies

November 21, 2012

The National Labor Relations Board (NLRB) has launched an initiative to protect “concerted activity” protected by section 7 of the National Labor Relations Act (NLRA).  This section of the NLRA protects “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  It has created a new web page to inform employees of their rights and undoubtedly intends to aggressively litigate such cases as come to their attention through the web site and other outreach efforts.  The web site itself describes in detail 13 such cases. Click here to go to this NLRB web page.

It is important to realize that the NLRB’s authority under section 7 applies to almost all private employers not just those with a union or whose employees are seeking to form a union.

On May 30, the NLRB’s Acting General Counsel issued an Operations-Management Memo on cases involving social media policies. “Report of the Acting General Counsel Concerning Social Media Cases,” Memorandum OM 12-59, May 30, 2012. Click here to read it.  Operations-Management Memoranda are issued to the field offices from the Division of Operations-Management of the General Counsel’s Office in Washington to give direction in case handling matters.  The Acting General Counsel gave a number of examples of policy provisions considered by the NLRB to be unlawful and also included a policy considered to be lawful.

Employers drafting social media policies for their employee handbooks should review this memorandum (particularly the model Social Media Policy found on the last three pages).

For example, the NLRB deems unlawful the seemingly common sense instruction that “[o]ffensive, demeaning, abusive or inappropriate remarks are as out of place online as they are offline.”  NLRB argues that “this provision proscribes a broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees.”

In its September 7 Costco Wholesale Corporation decision, the NLRB held that Costco’s social media policy was unlawful. The board found that the policy—which prohibited Costco employees from making statements on social media that could damage the company or other employees’ reputations—could violate employees’ free speech rights under section 7 of the NLRA. It also ruled that Costco could not maintain rules on employee information confidentiality that may be interpreted as prohibiting employees from discussing their wages and conditions of employment with other employees and third parties.  To read the Costco decision, click here. Costco Wholesales Social Media Decision

The September 28 NLRB decision in Knauz BMW is particularly remarkable.  An employer’s employee handbook containing the following language was deemed a violation of the employees’ rights:

Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

Thus, the NLRB has now ruled that requiring courtesy is unlawful.  According to the NLRB, “Employees would reasonably construe its broad prohibition against disrespectful conduct and language which injures the image or reputation of the Dealership as encompassing Section 7 activity.”  To read the Knauz decision, click here.Knauz Board Decision on Courtesy

The distinctions being drawn by the NLRB are not the sort of distinctions most ordinary people would draw.  But to avoid an expensive employee complaint to the NLRB, an investigation and possible enforcement action, it is advisable to make sure your social media guidance conforms to the dictates of the NLRB. This is particularly true if you are considering discharging an employee for violating your social media policy.  Adopting the social media policy language approved by the NLRB is the safest course.

Please click here to read Traps for the Unwary: Arrest Records & Employment

For questions, please contact NSBA General Counsel David R. Burton at DBurton@nsba.biz.

NSBA cannot give legal advice with respect to specific situations.