Employers adopting social media policies have to consider whether they would be struck down by the National Labor Relations Board (NLRB) if challenged as invalid under Section 7 of the National Labor Relations Act. Section 7 protects the rights of union, as well as non-union, employees to communicate at or away from work about terms and conditions of employment. Citing a desire to provide guidance to employers regarding workplace regulation of employee use of social media, the chief lawyer for the NLRB (its “General Counsel”) issued guidance reports in August 2011, January 2012 and May 2012 to show what sorts of social media policies the General Counsel believes violate Section 7. The NLRB considers but is not bound by the General Counsel’s guidance when issuing decisions. Until recently, the NLRB itself had not had occasion to issue a decision on a social media policy.

In Costco Wholesale Corporation (NLRB Case No. 34-CA-012421), the NLRB considered a social media policy for the first time. The NLRB invalidated portions of Costco’s policies and in doing so signaled that it will probably track closely with the General Counsel’s guidance when reviewing social media policies. That means a very aggressive review and the likelihood that policies which are not drafted narrowly and carefully will be struck down.

Reviewing an unfair labor practice charge filed by the United Food and Commercial Workers’ Union challenging various Costco employee handbook policies, the NLRB considered the following two policies which relate to social media use:

• A policy requiring that all employees communicating by e-mail, the Internet, or other technology or electronic means must do so “with appropriate business decorum.”
• A policy banning electronic communication, including on message boards and other social media, which damage the company’s or any person’s reputation, or defame any individual.

The NLRB upheld the “decorum” requirement, although the decision does not include any specific analysis to indicate why. The NLRB struck down the rule which threatened discipline for communication which might damage the reputations of the company or any person or which defamed any individual. The NLRB held that an employee could “reasonably construe [the policy] as one that prohibits Section 7 activity” and that it “would reasonably tend to chill employees in the exercise of their Section 7 rights.” The Board held that the broad prohibitions in the rule against making statements that damage the Company, defame any individual or damage any person’s reputation could include communications by employees complaining about working conditions. The decision is consistent with the general idea advanced by the General Counsel in guidance that broad restrictions on negative statements may make employees feel that they are prohibited from complaining in social media about working conditions.

Notably, the NLRB criticized the fact that the Costco policy did not include any language excluding communications protected under the NLRA from the restrictions of the rule. That suggests that if the rule had expressly excluded Section 7-like communication from the scope of the rule, it might have survived. In the guidance memos, the General Counsel has said that disclaimer clauses like this would not be effective to cure a policy which otherwise violates Section 7 rights. So it remains to be seen whether disclaimer language will be considered important in future NLRB decisions. Employers drafting social media policies will have to decide whether to include a Section 7 disclaimer in light of the fact that spelling out Section 7 rights as an exclusion may simply provide a road map to the workforce advertising the right to criticize working conditions.
Here is what you can take away from the NLRB Costco decision:

1. Review your social media policy as well as any other policies which restrict employee communication in light of the General Counsel guidance memos and the Costco decision.
2. Avoid broad language. If Costco teaches us anything, it is that the NLRB will strike down policies with broad prohibitions on actions or statements by employees that might include critical remarks about working conditions or management. Your policies should be as specific as possible about prohibited conduct so that they cannot be misinterpreted by employees to restrict all critical or negative comments.
3. Consider a separate policy for management. Keep in mind that the Section 7 right to be critical about wages and other terms and conditions of employment, does not extend to supervisors and managers. Employers should consider whether to issue a separate policy applicable and communicated only to supervisors and managers which makes clear that they are expected to follow more stringent standards concerning social media communication than apply to non-managers.