Employer Social-Media Policies in NLRB’s Cross-Hairs

By Michael Scimone

This month, the NLRB struck down Costco Wholesale Club’s social-media policy that barred employees (on pain of termination) from posting anything that may “damage the CCompany . . . or damage any person’s reputation.”

The NLRB’s September 7, 2012 order  held that Costco’s workplace policies went too far in limiting what its employees can say about work on social media sites. In Costco Wholesale Corp. & United Food & Commercial Workers Union, Local 371, 358 NLRB 1 (2012), the Board looked at Costco’s rule that prohibited employees from posting electronic statements that “damage the CCompany [or] defame any individual or damage any person’s reputation . . . .” The Board found that the rule was overly broad because employees could reasonably read it to prohibit them from making statements that were critical of Costco or their working conditions.

This holding is a new application of a decades-old principle: employees have the right to work together to improve their working conditions, and have a right to communicate with each other as a way to do that. See N.L.R.B. v. Babcock & Wilcox Co., 351 U.S. 105 (1956). Employees can show support for a union, Cintas Corp. v. N.L.R.B., 589 F.3d 905 (8th Cir. 2009), file a lawsuit, In Re D. R. Horton, Inc., 357 NLRB No. 184 (Jan. 3, 2012), work with other employees to publicize information about an employer’s policies, New York-New York, LLC v. N.L.R.B., 676 F.3d 193, 195 (D.C. Cir. 2012), and use social media for any of these purposes. While employers have fairly broad rights to manage the workplace, there are limits – and employees’ right to criticize their employers is one of them.

This shouldn’t be read as a broad license to blast your employer on Facebook. While most employees would watch their words out of basic caution and diplomacy, there are good legal reasons to be careful about what you say. Any information created online (or elsewhere, for that matter) is potentially discoverable in a lawsuit or administrative proceeding. And not all speech is protected. The National Labor Relations Act protects concerted activity – meaning communicating with your coworkers. Complaints outside the workplace aren’t necessarily protected. For instance, a bartender who posted a message to his stepsister’s Facebook wall complaining about his employer’s tip policy was not engaged in protected activity, according to the NLRB’s Office of the General Counsel – meaning his employer was free to fire him. Advice Memorandum, JT’s Porch Saloon & Eatery, Ltd., No. 13-CA-46689 (July 7, 2011). And while complaints with other employees about working conditions are protected, gratuitous attempts to harm your employer are not. St. Lukes Episcopal-Presbyterian Hospitals, Inc. v. N.L.R.B., 268 F.3d 575 (8th Cir. 2001) (nurse who appeared on local news accusing her employer of endangering mothers and babies by altering shift assignments was not protected by NLRA).

With those caveats in mind, though, the Costco case should make it clear that employees have the right to communicate with one another online and off about their jobs – and that employers who try to limit that speech may be interfering with important associational rights unless they draft their policies carefully.

Please visit the professional bio of Michael Scimone at the Outten & Golden LLP website.