NLRB Tightens Noose on Employers’ Social Media Policies

On September 7, 2012, the National Labor Relations Board (“NLRB”) restricted employers’ ability to police employee activity on sites such as Facebook and Twitter.  In a case involving wholesale giant Costco, the NLRB struck down a social media policy that prohibited electronic statements “that damage the Company, defame any individual or damage any person’s reputation.”  The NLRB said that the policy was overbroad and employees could reasonably assume that it prohibits otherwise federally-protected activity, and reads federal labor law to prohibit policies that may “chill” employees in the exercise of their rights.  The NLRB said that the Costco policy may cause employees to think that certain protected activities, such as communication between employees, was prohibited.  Thus, the NLRB held that the policy was unlawful.

All is not lost, however.  The NLRB also suggested that employers can include provisions in their social media policies that expressly permit legally protected employee conduct.

Based on the NLRB’s newest opinion, and the dynamic nature of this new area of law, an employer should contact its attorney to review and amend an existing social media policy, or to draft a new policy.

A copy of the decision can be found here.

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