On September 7, 2012, the NLRB upheld an administrative decision finding that portions of Costco’s social media policy violated Section 8(a)(1) of the National Labor Relations Act (NLRA). Generally, Section 8(a)(1) prohibits employers from interfering with, or restraining, employees’ rights to engage in concerted activities. “Concerted activities” means two or more employees acting together in furtherance of matters of mutual interest, such as employee compensation, benefits or improving workplace conditions. The NLRB found that a policy which prohibited employees from “discussing private matters of members and other employees… including topics such as, but not limited to, sick calls, leaves of absence, FMLA call-outs, ADA accommodations, workers’ compensation injuries, personal health information, etc.” violated Section 8(a)(1).
The Board also found that Costco violated Section 8(a)(1) by maintaining a rule that prohibited employees from electronically posting statements that “damage the Company… or damage any person’s reputation.” The Board explained that because employees could reasonably conclude that the rule required them to refrain from engaging in certain protected communications, i.e, those that are critical of the Company, the rule violated Section 8(a)(1).
This decision is a reminder that employers must balance employee rights under the NLRA, with employer interests in controlling employee on-line activities. Where a social media policy broadly restricts communications about the employer or workplace conditions, and does not exempt protected communications, it will violate the NLRA if challenged.