Although the National Labor Relations Board's Acting General Counsel has issued three advisory reports about his views on corporate social media policies within the past year, the Board had not decided an actual case. See NLRB Acting General Counsel Releases Third Social Media Report and NLRB General Counsel Releases Social Media Report. That changed on September 7, 2012, when the Board decided Costco Wholesale Corporation and United Food and Commercial Workers Union, Local 371, No. 34-CA-012421.
In Costco, the Board reviewed an employee handbook which contained a prohibition on electronic postings that "damage the Company, defame any individual or damage any person's reputation." The Board held that the company's policy was unlawful. It concluded that the posting prohibition was overbroad, because it could be construed to "chill" the right of employees to engage in "protected, concerted activity".
Employers should be aware of the Costco decision moving forward, because it is Board law and gives weight to the Acting General Counsel's prior pronouncements on social media, and it provides guidance on specific language that should not be included in your company's rules. Costco is likely the first of many more cases to come on the issue of social media.
Click here to review the board decision.