In the first case, the NLRB invalidated employer handbook provisions prohibiting employees from electronically posting statements that “damage the Company, defame any individual or damage any person’s reputation” and from disclosing "confidential information" like employees' names, addresses, phone numbers and email addresses. Costco Wholesale Corp., 358 N.L.R.B. No. 106 (Sept. 7, 2012). In a separate decision, the NLRB invalidated a rule encouraging “courteous, polite and friendly” communications with customers and other employees. Knauz BMW, 358 N.L.R.B. No. 164 (Sept. 28, 2012). In both cases, the NLRB applied traditional National Labor Relations Act (NLRA) principles, holding that employees would “reasonably construe” these provisions as restricting their NLRA Section 7 rights to discuss wages, hours and other terms and conditions of employment.
However, in the Knauz case, which involved a car salesman and a number of his Facebook postings, the NLRB ruled that the firing of a salesman was not unlawful because federal law did not protect the employee’s Facebook updates. The NLRB ruled the dealership did not act unlawfully by firing the salesman after he posted a picture of a Land Rover accident, including the caption “Oops.”
A post by an employee on a social media website may be protected by the NLRA if it relates to working conditions, wages, and includes concerted activity. In the case of the car salesman, his Facebook postings ridiculing the dealership for serving hot dogs and bottled water may have been protected by the NLRA. However, the picture of the accident and accompanying caption was not protected speech and was ultimately responsible for his termination.
Prior to the decisions referenced above, social media policies had previously been guided by administrative decisions and memoranda from the board’s General Counsel (See http://mynlrb.nlrb.gov/link/document.aspx/09031d458056e743), but these did not set precedent.
These new decisions by the NLRB underscore the fact that all employers must remain vigilant about their obligations in the evolving world of social media. This remains a fluid area of the law and changes will continue to occur. However, this should prompt employers to thoroughly review their social media policies to ensure that they comport with the provisions of the NLRA.