Client Alert - Employment Law Update
Like it or Not, Your Social Media Policy is Probably Out of Date.
The National Labor Relations Board (NLRB) recently issued its first social media ruling, striking down Costco's social media policy. The decision illustrates the applicability of traditional labor law to common employment policies.
Background and the National Labor Relations Act
The case of Costco Wholesale Corp. and UFCS Local 371, 358 NLRB No. 106 (Sept. 7, 2012) began when Local 371 of the United Food and Commercial Workers filed a petition against Costco, claiming that it was violating the National Labor Relations Act (the Act). Specifically, it took issue with various provisions of Costco's employment handbook, including its social media policy. The policy prohibited, among other things, online postings that would damage the company or any person's reputation.
Section 7 of the Act gives employees the right to "form, join, or assist" unions in bargaining collectively with their employers, and "to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." This has come to be known as "protected concerted activity." In addition, the Act makes it unlawful for employers to interfere with these rights.
The NLRB reviewed Costco's policy and analyzed whether it would "reasonably tend to chill" employees in the exercise of rights under the Act. Although the policy was typical of those addressing online communications by employees with no seeming relation to union activity or collective bargaining, the NLRB viewed the blanket prohibition as overly broad. It concluded that employees could reasonably understand the policy to restrict protected activity, such as protesting working conditions.
What to Do
Employers should be aware that the NLRB has been applying the Act in reviewing standard workplace policies. Importantly, this is not limited to social media policies, but includes all policies that implicate employees' rights to communicate about workplace issues. Therefore, employers should review handbooks and employment manuals to ensure they are narrowly drafted to not unintentionally inhibit rights under the Act.
If you would like more information about this decision, or have questions about your employment policies and practices in general, please contact Mr. Gonzalez at 312-558-9779 or at egonzalez@elvisgonzalezltd.com.
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