NLRB Announces Its First Formal Ruling On The Legality Of Social Media Policies

Author:Mr Jerrold Wohlgemuth
Profession:Drinker Biddle & Reath LLP
 
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In line with the series of guidelines issued by the Acting General Counsel over the past year, the NLRB has announced its first formal ruling on social media policies, finding that the social media policy of Costco Wholesale Corp. is unlawful because it broadly prohibits online comments "that damage the Company, defame any individual or damage any person's reputation, or violate the policies" in the employer's handbook. 358 NLRB No. 106. The case represents the first ruling by the Board on the legality of social media policies, and follows the Acting General Counsel's admonition that overbroad policy statements will be held unlawful.

The Board observed in its opinion that in the absence of a disclaimer notifying employees that the rule is not intended to restrict the right to engage in protected concerted activities, the broad prohibition on comments that might "damage the Company" is overbroad and unlawful because "employees would reasonably conclude that the rule requires them to refrain from engaging in" communications that are critical of the company or its supervisors despite the fact that the policy does not appear to address or prohibit critical comments about the company. In this respect, the opinion appears to reflect the Board's approach that policy statements will be judged not by what they purport to prohibit, but by whether employees could reasonably construe them as restricting their right to communicate about terms and conditions of employment. The Board observed that context matters, however, suggesting that employers might avoid liability by...

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