On November 15, 2012, the National Labor Relations Board again rejected an employer’s social media policy because it could be construed to chill employees’ rights to join together for mutual aid and protection.
Dish Network’s employee handbook banned employees from making “disparaging or defamatory comments” about the company.
Relying on the NLRB’s recent decision invalidating Costco Wholesale Corp.’s electronic posting policy , the Administrative Law Judge found that the limitation on negative commentary was analogous to the provision struck down in the Costco decision. See Costco Wholesale Corporation and United Food and Commercial Workers Union, Local 371, Case 34–CA–012421/
In Costco, the policy at issue prohibited employees from posting statements that damaged the company’s reputation. The NLRB held that, even though the rule did not explicitly refer to an employee’s right to engage in concerted activity, an employee reasonably could believe the prohibition would restrict his or her ability to post statements critical of Costco’s payment of wages or the company’s working conditions.
The NLRB likewise expressed concern that the policy would discourage employees from reporting claims of discrimination, harassment or other illegal employment actions to enforcing agencies. Even though there was no evidence that Costco actually used the policy in that manner, the NLRB found that the restriction was unlawful absent language making clear that the policy restrictions did not apply to protected employee speech or activity.
Since the Costco decision in October of this year, the NLRB has sanctioned only one employer policy which contained savings language.
The Dish Network decision reemphasizes, however, that the NLRB will continue to closely review social media policies for potential infringement on employees’ federally protected rights.