NLRB’s First Social Media Ruling Slams Costco’s Policy, OKs Defamation

By Eric B. Meyer

It’s been a while since I’ve addressed social media policies and the National Labor Relations Act on this blog. Longer than Kim Kardashian’s marriage to what’s his name.

Indeed, things at the National Labor Relations Board have been quiet lately. Maybe a little too quiet.

Earlier this month, for the first time ever, the NLRB weighed in on the validity of an employer’s social media policy.

At issue here was Costco’s social media policy.

What Costco’s social media policy says …

Hey, I know people who shop there. Seems like a nice place. What could be so objectionable about Costco’s social media policy? Well, let’s see what it says:

Any communication transmitted, stored or displayed electronically must comply with the policies outlined in the Costco Employee Agreement. 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, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment. (my emphasis)”

You can get sued for defamation, right? And damaging a person’s reputation sounds pretty bad to me too. And as long as employees myst abide by other company policies, why not include social media, right?

The NLRB must have deemed these provisions to be lawful, because how could an employee with half a brain possibly construe these work rules to restrict their rights under Section 7 of the National Labor Relations Act to preclude them from discussing their terms and conditions of employment with one another?

… and what the NLRB objects to

Break it down for us NLRB:

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[T]he appropriate inquiry is whether the rule would reasonably tend to chill em-ployees in the exercise of their Section 7 rights…Here, [Costco’s] rule does not explicitly reference Section 7 activity. However, by its terms, the broad prohibition against making statements that “damage the Company, defame any individual or damage any person’s reputation” clearly encompasses concerted communications protesting [Costco’s] treatment of its employees….In these circumstances, employees would reasonably conclude that the rule requires them to refrain from engaging in certain protected communications (i.e., those that are critical of Costco or its agents).”

Translation: Defamation and the like is fair game in your workplace because your employees are too obtuse to understand that a work rule prohibiting such behavior would not affect their rights under Section 7 to discuss workplace conditions with one another (sorry, that’s me being sarcastic).

Let’s also point out that the NLRB underscored that Coscto’s rule never “even arguably suggest[ed] that protected communications are excluded from the broad parameters of the rule.”

Now wait just a minute; I seem to recall the NLRB Acting General Counsel preaching to employers in his mish-mosh social media advice memoranda about how savings clauses are invalid. That is, the NLRB supposedly frowns on a policy disclaimer reassuring employees that certain work rules will not be enforced so as to chill Section 7 rights.

Care to make sense of all this?

This was originally published on Eric B. Meyer’s blog, The Employer Handbook..

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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1 Comment on “NLRB’s First Social Media Ruling Slams Costco’s Policy, OKs Defamation

  1. The plain and simple truth is that the NLRB hasn’t clue one on how to deal with social media policies.  That is the only conclusion one can reach given their contradictory stances on the same issue.  Strikes me that they are hoping for a test case to allow the courts to drive their “position”.

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