NLRB Formally Sanctions Anti-Posting Rule

NLRB Formally Sanctions Anti-Posting Rule

The National Labor Relations Board has been closely reviewing employer rules on employee communications, especially in the social media context.  As reported here earlier, employees who used facebook to air grievances about something on the job were protected.  The protection is not limitless; a newspaper employee who tweeted inappropriate and offensive tweets about the city’s homicide rate was not protected.  An employee who posted to a relative, not a coworker, a criticism of his pay and his customers, saying he hoped they choked on glass as they drove home, was also not engaging in protected activity.

The central issue remains whether employees are talking among themselves about the terms and conditions of employment, or are otherwise contemplating or taking collective action about work issues.

In a new decision, the Board considered Costco’s employment handbook, which it called the Employee Agreement.  The agreement 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.

Because employees would reasonably view this provision as prohibiting them from complaining about work conditions, or criticizing their employer, the rule interfered with statutory rights.  There was no language limiting the ban to abusive, harassing language.  Nor did the handbook affirmatively state that employees retained their right to make protected communications.  It flatly stated that posting online something that could damage a person’s reputation, which can include truthful statements, could lead to termination.

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