The NLRB just issued its decision in In Costco Wholesale Corp. The Costco case gave the Board its first opportunity to address social media policies and provide meaningful guidance to employers. The Board certainly tipped its hand with respect to how it views such policies, but it offered virtually no guidance to employers in the process. The Costco case involved a challenge to several employer rules. One of those rules prohibited employees from posting online statements that “damage the Company…or damage any person’s reputation.”
Reading the employer’s non-disparagement rule as broadly as humanly possible (and perhaps beyond), the Board concluded that a reasonable employee might conclude that the rule prohibits employees from engaging in activity on behalf of themselves and co-workers, protected under Section 7 of the National Labor Relations Act. The Board held that, because the policy could be misconstrued in this fashion (even though it says no such thing), it “chills” the free exercise of Section 7 rights in violation of the Act.
Although the Board does not come right out and say it, the opinion suggests that this particular policy might have been rescued if only the employer specifically stated in the policy that it was not intended to prevent employees from engaging in concerted, protected activities with respect to hours, wages, benefits and working conditions. Either way, this opinion promises to be just the beginning of what will invariably be a long, long line of Board cases upending employer social media policies. If you haven’t audited your own social media policy in light of the recent Board obsession with social media, you better get to it…quickly.