Employee Rights: Will Employment Rules on Social Media Policies Survive the NLRB’s Costco Precedent? Employee Rights Lawyers May be the Only Ones to Sort This Out

As reported in our previous posts in August(read them by clicking here NLRB Clean Slate Part 1 and NLRB Clean Slate Part 2 about the National Labor Relations Board (NLRB) v. Noel Canning, that U.S. Supreme Court decision, commonly referred to as Noel Canning, which they handed down in June of this year, invalidated the NLRB decisions made between January 4, 2012 and August 5, 2013. In doing so, the Supreme Court also nullified the precedents set by those decisions. The Noel Canning decision has put employees and businesses in a legal limbo. Both employers and employees are now faced with the question: Whether to follow the pre-Noel Canning state of the law or assume that the recently invalidated decisions will eventually be reissued. The advice of an employment attorney like those at Kilgore & Kilgore should be sought before attempting to navigate the treacherous waters of employee and employer rights.

One of the most important rulings made by the NLRB during that period of invalid decisions was in the case of Costco Wholesale Corporation. Like many businesses, Costco had addressed the social media boom by adopting a policy which dictated how their employees could use social media such as Facebook with respect to the workplace and their jobs. Costco’s employee handbook broadly prohibited employees from posting statements online that could “damage the Company, defame any individual or damage any person’s reputation.”

Ironically, Costco never enforced this policy against any employee. Nevertheless, the NLRB reviewed the policy and ruled that it violated Section 7 of the National Labor Relations Act (NLRA). In particular, the NLRB determined that Costco’s policy was overly broad and would have a chilling effect on employees’ rights under Section 7 to engage in protected concerted activities because an employee might reasonably believe that this policy restricted his or her ability to post statements regarding the terms and conditions of employment. For more detail on the concerted activities rule, click here to see our July 25th blog post Your Rights as an Employee—The Concerted Activity Rule.

The NLRB issued this ruling even though Costco had never disciplined an employee for violating this policy. In doing so, the NLRB set a precedent not only for what type of social media policy violates the NLRA, but also, the ease with which such a policy could be challenged at any time, regardless of whether the employer has taken any disciplinary action to enforce the policy.

Since the Costco decision was invalidated by Noel Canning— what happens now?

One answer to this question might be found in the NLRB’s General Counsel’s pre-Costco published opinions, which expressed the view that Section 7 of the NLRA applies to an employer’s social media policies. One caveat here, the General Counsel’s memoranda are only considered guidance, not precedent, but are often just as instructive. Further support for this answer comes from the fact that the NLRB was following this guidance in its Costco decision. Another answer may lie in the political makeup of the reconstituted NLRB, which suggests that the current Board will follow the policies of the recent past. Therefore, employers have good reason to cautiously assume that the Costco precedent will soon reappear.

It would be wise for employers to draft social media policies that are as specific as possible, and state clearly that its policy is not intended to prohibit protected activities under Section 7 of the NLRA. On the flipside, if employees feel they are being unlawfully intimidated by their company’s social media policy, they could well have a valid claim which the NLRB would support. In either event, sound and experienced legal advice would be of great assistance. Kilgore & Kilgore has employment law attorneys who specialize in this particular area and are ready to review and revise such company policies in order to reduce the potential risk of exposure during this uncertain period.

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