Much has been written about the “firm” guidance the National Labor Relations Board (NLRB) gave employers when it identified a social media policy that was, in its entirety, compliant with the National Labor Relations Act. That policy, which is Walmart’s, can be found in this report, Acting General Counsel Releases Report on Employer Social Media Policies.
A recent decision by the NLRB, however, calls into question some of the guidance given in this report. First, in light of the NLRB ethics probe, is the Walmart social media policy still acceptable? This article explains that the Acting General Counsel Lafe Solomon acted wrongfully in the Walmart matter because he held stock in Walmart that he had inherited from his mother, who died in July 2011. Thus, there is at lease an issue with the NLRB’s approval of Walmart’s policy. This is important because many employers have been using this policy as a framework for their own.
Moreover, on September 7, 2012, the NLRB published its decision in Costco Wholesale Corporation and invalidated Costco’s social media policy, which prohibited employees from making statements that “damage the Company . . . or damage any person’s reputation.” The Board also found that the following violated Section 8(a)(1):
(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.
The Board’s Reasoning Is Easily Summarized:
The Respondent has violated Section 8(a)(1) of the Act by maintaining rules in its Employee Agreement that:
- prohibit the unauthorized posting, distribution, or alteration of any material on Company property;
- may reasonably be interpreted as prohibiting employees from discussing their wages and other terms and conditions of employment with other employees and third parties–including union representatives;
- may reasonably be interpreted as prohibiting employees from sharing or storing wage information or information relating to other terms and conditions of employment without permission of management;
- prohibit employees from posting messages that “damage any person’s reputation;”
- prohibit the removal of confidential material from Company premises, which the Respondent has defined as conduct that may reasonably be interpreted as including wages and other terms and conditions of employment.
So, what does this mean? It’s time, yet again, to take a look at your social media policies and determine whether they may be “chilling speech” that is protected by the NLRA. Practitioners should be aware of this decision and advise their clients accordingly. Once again, the NLRB has confirmed that it is at the forefront of addressing social media issues, not only in the workplace, but also in the legal field as a whole.