The National Labor Relations Board recently invalidated several sections of Costco’s employee manual, including its social media policy. The United Food and Commercial Workers union filed an unfair labor practices charge, contending the rules violated Section 8(a)(1) of the NLRA because they prohibited protected activities under Section 7 of the NLRA.
The decision is seen as a victory for unions and workers’ rights in the face of an increasing number of these corporate social media policies.
Section 7 gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
The case is Costco Wholesale Corporation and United Food and Commercial Workers Union, Local 371 (Case 34-CA-012421). At issue was a section in Costco’s employee handbook that said message board comments or social media posts that violated company policy would be subject to discipline up to and including termination.
The three-member panel of the National Labor Relations Board noted any social media rule that violates Section 7 rights would be unlawful. Otherwise, a violation depends on one of the following: The employee could reasonably construe that the language violates Section 7 activity; the rule was formed in response to union activity; or that the rule’s aim is to restrict Section 7 rights.
The panel found that wording prohibiting employees from posting comments detrimental to the company or to a person’s reputation “clearly encompasses concerted communications protesting … treatment of its employees.” However, the panel found a rule prohibiting employees from leave company property during a work shift without the permission of management was not in violation.
New Jersey employment attorneys understand technology plays a critical communications role for a union and its members. Consequently, social media use is increasingly becoming an issue addressed in employee handbooks. In this case, the ruling by the Administrative Law Judge invalidates several sections of Costco’s employee handbook that are likely found in the employment policies of many companies. These include prohibitions against sharing personal health information, personal employee contact information, and information protected by the Family and Medical Leave Act and the Americans with Disabilities Act.
In the last year, the Acting General Counsel for the NLRB has issued three advisory reports regarding corporate social media policies. However, this is the first case decided by the board.
In this case, the National Labor Relations Board ordered Costco to cease and desist from:
-Maintaining social-media provisions that could be interpreted as prohibiting employees from discussing working conditions, wage or other employment issues.
-Maintaining provisions prohibiting employees from posting statements damaging to a person’s reputation.
-Maintaining a social media policy that is overly broad or could be construed as negatively impacting an employee’s collective-bargaining rights.
-Maintaining policies that prohibit an employee from posting negative information about the company.
Our New Jersey employment attorneys continue to see employers run afoul of state of federal laws by developing social media policies aimed at protecting the best interests of the company, without regards to the rights of the workforce.
If you need to speak to an employment law attorney in New Jersey or New York, contact the Resnick Law Group at 973-781-1204 or 646-867-7997.
New Jersey Public School District Pays to Settle Disability Discrimination and Retaliation Claims, Published by Resnick Law Group, P.C., July 24, 2012.