National Labor Relations Board Determines Costco’s Social Media Policy Violates National Labor Relations Act

The National Labor Relations Board (“NLRB”) recently held that Costco’s social media policy, as outlined in its employee handbook, violated the National Labor Relations Act (“NLRA”) as being “too broad,” and could be interpreted as prohibiting employees from taking part in certain communications that are protected under the NLRA.

The Background

Local 371 of United Food and Commercial Workers initially filed charges against Costco alleging that various provisions in its employee handbook violated the NLRA. One of the provisions at issue was Costco’s social media policy, which provided that “statements posted electronically (such as [on] online message boards or discussion groups) that damage the Company, defame any individual or damage any person’s reputation may result in discipline, including termination.”

The Decision

The NLRB determined that the restrictions contained in Costco’s social media policy were “too broad” and “clearly encompass[ed] concerted communications protesting the [employer’s] treatment of its employees.” Additionally, because the policy lacked language excluding protected communications, the NLRB held that it had a “reasonable tendency to inhibit employees’ protected activity” and thus violated the NLRA.

Why Is This Decision Important?

This decision illustrates the importance of employers carefully articulating those policies contained in their handbook. Here, Costco failed to consider how its social media policy, as worded, could be interpreted as violating the NLRA and failed to include language that would appropriately restrict application of the policy to activities which are not protected under the statute.

Because social media plays a significant role in the employment relationship, it is essential that employers maintain policies which balance their interests in protecting their organizations with the rights of their employees to express themselves outside of the workplace.

Given the NLRB’s holding, employers should carefully review any social media policy or employee handbook to ensure that these documents do not violate the NLRA. As always, Leech Tishman’s Employment Practice Group is available to assist employers with drafting or revising an effective social media policy.

Please feel free to contact the Employment Group with any questions regarding how this recent decision regarding social media policies may impact your organization.

Leech Tishman is a firm dedicated to providing full-service commercial legal services to individuals, businesses, and institutions.  We combine a deep understanding of our clients and their businesses with skilled legal counsel to find solutions.  We offer legal services in alternative dispute resolution, bankruptcy & creditors’ rights, construction, corporate, employment, energy, environmental, safety & toxic torts, estates & trusts, government relations, insurance coverage & corporate risk mitigation, litigation, real estate, and taxation.  For more information call 412.261.1600 or visit www.leechtishman.com.