Littler social media policies

Authors: Chip McWilliams, Philip Gordon, and Kathryn Siegel

Between the summer of 2011 and the spring of 2012, the Acting General Counsel of the National Labor Relations Board (NLRB), Lafe Solomon, published three Advice Memos1 that expressed his views on the application of the National Labor Relations Act (NLRA) to social media policies. The memoranda addressed both the legality of particular policy provisions and the legality of discipline issued by employers based on employees' personal social media content. These memoranda, however, revealed only the litigation positions that the NLRB's cadre of enforcement attorneys would take in this new and evolving area of the law. The views expressed in the memos did not bind the Board. The Board finally weighed in on September 7, 2012, issuing an opinion that, while not analyzing the employer's social media policy per se, revealed the Board's thinking on several provisions commonly found in social media policies.

In Costco Wholesale Corporation, 358 NLRB No. 106 (Sept. 7, 2012), the Board addressed a number of different policies the employer maintained. One of the policies, entitled the "Electronic Communications and Technology Policy, " provided in relevant part that "[a]ny communication transmitted, stored or displayed electronically must comply with the policies outlined in the [Company] 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 [Company] Employee Agreement, may be subject to discipline, up to and including termination of employment."

The administrative law judge (ALJ) concluded that employees would not reasonably construe this policy as regulating or inhibiting protected communications under the NLRA (Section 7 activity). The Board disagreed, remarking that the policy included a broad prohibition and did not include any language to suggest that Section 7 activity was excluded from its reach. Finding that the policy did not include language that would tend to restrict its application and that, as a result, the policy had a “reasonable tendency to inhibit employees' protected activity, the Board held that the policy violated Section 8(a)(1).

In finding that the policy violated the NLRA, the Board went on to suggest language that would be permissible. The Board cited prior decisions that approved prohibitions on speech that was: (a) "malicious, abusive or unlawful;" (b) "profane language" and "harassment;" (c) "injurious, offensive, threatening, intimidating, coercing, or interfering with" other employees; and (d) "slanderous or detrimental to the company."

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Hald is careful to differentiate his company from social media monitoring solutions, which he says only let you know that there is a discussion about the company in social channels.

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