NLRB Strikes Down Overbroad Rules, Nixes Social Media Policy

by Miller & Martin PLLC
Contact

A recent decision from the NLRB illustrates the importance of carefully reviewing your work rules and policies to assure that the mere maintenance of a rule does not end up being an unfair labor practice.  In Costco Wholesale Corporation, 358 NLRB No. 106 (2012), the NLRB reviewed several rules and policies in Costco’s employee handbook.  It found that Costco violated Section 8(a)(1) of the National Labor Relations Act (the “Act”) by maintaining rules stating that:
(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 e-mail addresses.  
It was held that these rules were overbroad since they directly restrict employees from engaging in concerted activities under Section 7 of the Act.
In its first decision on a social media policy, the NLRB found that Costco’s social media policy also violated Section 8(a)(1). This policy stated:
Any communication transmitted, stored or displayed electronically must comply with the policies outlined in the Costco Employee Agreement. 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 discharge.  
While the policy did not explicitly reference Section 7 activity, the NLRB felt that, by its terms, the broad prohibition against making statements that “damage the Company, defame any individual or damage any person’s reputation” clearly encompassed concerted communications protesting Costco’s treatment of its employees. The NLRB noted that there is nothing in the policy that even arguably suggests that protected communications are excluded from its broad parameters. Accordingly, employees could reasonably conclude that the policy required them to refrain from engaging in certain protected communications (i.e., those that are critical of the Company or its agents).  Since Costco’s policy did not present accompanying language that would tend to restrict its application, employees could reasonably assume that it pertained to -- among other things -- certain protected concerted activities, such as communications that are critical of Costco’s treatment of its employees. The  maintenance of this policy thus had a reasonable tendency to inhibit employees’ protected activity and, as such, violated Section 8(a)(1). 
The NLRB did find, however, that a rule requiring employees to use “appropriate business decorum” in communicating with others did not violate the Act. Nor did Costco violate the Act by maintaining a rule prohibiting employees from “[l]eaving Company premises during a working shift without permission of management.” This particular rule was lawful, because it did not prohibit employees from “walking off” the job without permission, a rule that has been deemed unlawful in past NLRB decisions because “walking off” is too similar to the term “walk out,” a synonym for a strike. 
This case clearly shows that the current NLRB accepts many of the Acting General Counsel’s recently published legal theories relating to how employers’ social media policies that are broadly written inhibit employees in the exercise of their Section 7 rights. It also shows that the NLRB is willing to interpret work rules in a way that will protect employees who complain to others, either inside or outside the workplace, about working conditions.
One ray of hope in this decision is the NLRB’s references to the lack of a disclaimer in Costco’s social media policy to let employees know that the Company did not intend to prohibit protected activities through this policy. (The NLRB’s Acting General Counsel has asserted in other litigation that such disclaimers are ineffective to save an overly broad rule, such that they should not be viewed as a way for employers to avoid taking appropriate care in otherwise designing social media policies which are not worded so broadly as to unlawfully restrict employees’ Section 7 rights.)
In light of this and other recent NLRB decisions reported in previous alerts, we are currently assisting employers daily in designing social media and other employee handbook policies in such a way as to make them compliant with the Act as well as other applicable state and federal laws.
Please feel free to contact Bill Trumpeter, David Whitlock or any other member of our Labor & Employment law Practice Group for a template social media policy that you can customize for your business or for any other assistance reviewing your current or planned employee handbooks or other policies. 
The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations.  As always, readers should consult a qualified attorney for specific legal guidance.  Should you need assistance from a Miller & Martin attorney, please call 1-800-275-7303.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Miller & Martin PLLC | Attorney Advertising

Written by:

Miller & Martin PLLC
Contact
more
less

Miller & Martin PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.