It's been a while since I've addressed social media policies and the National Labor Relations Act on this blog. Longer than Kim K's marriage to what's his name? Indeed. Methinks things at the National Labor Relations Board have been quiet lately. Maybe a little too quiet.
Earlier this month, for the first...time...evah, the NLRB weighed in on the validity of an employer's social media policy.
I know. I know. Sit down, catch your breath. This is big stuff! Big stuff!!! Mmmm...double stuf. And speaking of Oreos, have you seen these bad-boys? Who wants to send me a package for Halloween?
Wait! What were we talking about again? Was it fantasy football? Should I start Martellus Bennett tonight?
No, it was NLRB. Dang! What did the NLRB decide about social media policies? WHAT OF SOCIAL MEDIA POLICIES!?!? I won't keep you in suspense any longer.
At issue here was Costco's social media policy.
Hey, I know people who shop there. Seems like a nice place. What could be so objectionable about their 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?
[Hold on for a sec, let me read the opinion...]
Yeah, about what I was just saying...
NLRB 1 - Meyer 0
Break it down for us NLRB:
[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.
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 there, son! 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 article was originally published on Eric B. Meyer's blog, The Employer Handbook.
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