Following years of attention by its Regional Offices and Acting General Counsel, the National Labor Relations Board has issued its first decision regarding the legality of an Employer’s social media policy. In Costco Wholesale Corp., 358 NLRB No. 106 (Sept. 7, 2012), the Board found several elements of the employer’s electronic posting policy to violate the NLRA as overly broad restrictions on Section 7 activity by employees. In so concluding, the Board made clear that it intends to follow the rationale laid out by the Acting GC in a series of memoranda issued during the past fifteen months.
The Board ruled that the employer violated Section 8(a)(1) of the NLRA by maintaining policies which provided that:
(a) “unauthorized posting, distribution, removal or alteration of any material on Company property” is prohibited;
(b) employees are prohibited from discussing “private matters of members and other employees . . . includ[ing] topics such as, but not limited to, sick calls, leaves of absence, FMLA call-outs, ADA accommodations, workers’ compensation injuries, personal health information, etc.”;
(c) “[s]ensitive information such as membership, payroll, confidential financial, credit card numbers, social security number or employee personal health information may not be shared, transmitted, or stored for personal or public use without prior management approval”; and
(d) employees are prohibited from sharing “confidential” information such as employees’ names, addresses, telephone numbers, and email addresses
Moreover, reversing the decision of the Administrative Law Judge (ALJ), the Board found that the work rule prohibiting employees from posting statements that “damage the Company…or damage any person’s reputation" was also unlawful.
There are no novel, sweeping pronouncements in the decision, but rather the Board purports to have applied analogous precedent to new technologies. To wit, the Board reiterates the tests for assessing whether or not any work rule is overly broad, as set forth in Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) and Lafayette Park Hotel, 326 NLRB 824, 825 (1998), enfd. 203 F.3d 52 (D.C. Cir. 1999):
If the rule … does not [explicitly restrict Section 7 rights],“the violation is dependent upon a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.”
What the Board did here, then, is to follow the Acting GC’s lead and its earlier efforts to push further the scope of language that an employee might "reasonably construe" to prohibit protected activity. Since the Board’s reasoning so closely tracks the approach of the Acting GC’s memoranda, it would behoove employer who have not yet done so to review those and their own policies for compliance. (See here, here and here).
The long-term viability of the decision itself may be questionable — regardless of whether the reasoning ultimately endures. Of the three Members who sat on this decision — all three Democrats — only one is Senate confirmed. There is only one other Senate confirmed Member, Republican Brian Hayes. If the pending challenge to President Obama’s recess appointments to the Board are successful, it would call into question the validity of this decision — as well as all recent Board action — as the Board would lack the three-Member quorum required by statute.
For now, however, prudent employers will take this decision and its underlying reasoning very seriously as greater attention is paid to workplace restrictions on social media.