May an Employer Restrict Employees' Use of Social Media?

Posted by Jeanine Gagliardi on Fri, 10/05/2012 - 04:00

One of the rights afforded to employees by the National Labor Relations Act is to communicate with others regarding wages and working conditions. An employer is not allowed to have a rule that could reasonably be construed by employees as prohibiting such communications. A recent decision by the National Labor Relations Board, the federal agency tasked with enforcing the Act, reminds employers that they must take care to ensure that their social media policies do not violate the Act in this manner.

In the matter, the Board filed a complaint against Costco, charging, among other things, that Costco’s “Electronic Communications and Technology Policy” violates the Act. After a hearing, an Administrative Law Judge found that two provisions of the Policy could reasonably be construed as precluding discussion about wages and working conditions and, for this reason, violate the Act. One provision required employees to ensure that all information relating to Costco, its employees, and its operation is “secure, kept in confidence, and not disseminated or misused.” The other precluded employees from sharing, transmitting, storing, or removing payroll information without company approval.

Costco filed exceptions to the Judge’s decision. The Board reviewed the matter and issued an opinion. The Board affirmed that the two provisions violate the Act because they are written so broadly that an employee could reasonably construe them as prohibiting discussion about wages and working conditions. The Board then held that a third provision violated the Act. That provision stated that an employee could be disciplined for posting electronic statements “that damage the Company.” Costco was ordered to rescind or modify the provisions and notify employees of policy updates, including by posting a notice.

The key point for employers is that social media policies may not intrude upon employees' rights to communicate about wages and working conditions. One way to narrow an otherwise broad policy is to add language that limits or clarifies the policy's application in a way that informs employees they are not restricted from communicating in ways protected by the Act.

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