On September 7, 2012, in a decision that is likely to have wide-ranging implications for companies’ social media policies, the NLRB issued a decision finding that Costco’s policy prohibiting defamatory statements about the company violates Section 8(a)(1) of the National Labor Relations Act (the Act) (Costco Wholesale Corp. and United Food and Commercial Workers Union, Local 371).
As we have previously reported, Section 8(a)(1) provides that it is an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their rights guaranteed in Section 7 of the Act. Section 7, in turn, states that employees are permitted to self-organize, join unions, and engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”
Reversing a decision by the administrative court, the NLRB held that Costco’s social media policy ran afoul of Section 8(a)(1). The policy language at issue stated that, “Employees should be aware that statements posted electronically (such as to online message boards or discussion groups) that damage the company, defame any individual or damage any person’s reputation or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment.” The NLRB acknowledged that the rule does not explicitly reference Section 7 activity, but concluded that it clearly extended to communications that protested Costco’s treatment of employees and made no exception for such communications. Again, as we have previously reported, employers need to take care in drafting, and perhaps review and revise, their social media policies.
This topic (and others) will be covered at Foley’s upcoming Labor and Employment Law Summit in Chicago on October 25, 2012, which includes a panel discussion on social media policies and an NLRB panel participant.
This blog is made available by Foley & Lardner LLP (“Foley” or “the Firm”) for informational purposes only. It is not meant to convey the Firm’s legal position on behalf of any client, nor is it intended to convey specific legal advice. Any opinions expressed in this article do not necessarily reflect the views of Foley & Lardner LLP, its partners, or its clients. Accordingly, do not act upon this information without seeking counsel from a licensed attorney.
This blog is not intended to create, and receipt of it does not constitute, an attorney-client relationship. Communicating with Foley through this website by email, blog post, or otherwise, does not create an attorney-client relationship for any legal matter. Therefore, any communication or material you transmit to Foley through this blog, whether by email, blog post or any other manner, will not be treated as confidential or proprietary.
The information on this blog is published “AS IS” and is not guaranteed to be complete, accurate, and or up-to-date. Foley makes no representations or warranties of any kind, express or implied, as to the operation or content of the site. Foley expressly disclaims all other guarantees, warranties, conditions and representations of any kind, either express or implied, whether arising under any statute, law, commercial use or otherwise, including implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Foley or any of its partners, officers, employees, agents or affiliates be liable, directly or indirectly, under any theory of law (contract, tort, negligence or otherwise), to you or anyone else, for any claims, losses or damages, direct, indirect special, incidental, punitive or consequential, resulting from or occasioned by the creation, use of or reliance on this site (including information and other content) or any third party websites or the information, resources or material accessed through any such websites.
In some jurisdictions, the contents of this blog may be considered Attorney Advertising. If applicable, please note that prior results do not guarantee a similar outcome. Photographs are for dramatization purposes only and may include models. Likenesses do not necessarily imply current client, partnership or employee status.