A social media policy constitutes an unfair labor practice where it restricts protected speech by broadly prohibiting “negative” employee speech online, restricts employee speech online during work hours (without indicating that protected speech could be exercised during breaks), and requires preclearance before employees could speak publicly or to government officials. The employer’s social media policy prohibited employees from making disparaging or defamatory comments about the employer during or outside of work hours, from engaging in negative electronic communication on company time, and from speaking to the media or government agencies electronically without prior approval from management. The NLRA prohibits employers from restricting employee speech protected under Section 7, including electronic speech, or from issuing policies that chill protected speech. Applying the NLRB’s ruling in Costco Wholesale Corp., an NLRB administrative judge invalidated an employer’s social media policy which restricted employees from making negative comments about the employer online, including during periods when employees were not working (such as work breaks or outside of the office).
Dish Network Corp., No. 16-CA-62433, 2012 WL 5564372 (N.L.R.B. Div. of Judges 2012); see, e.g., Knauz BMW, 358 NLRB 164 (2012) (“courtesy rule,” which prohibited “disrespectful” conduct and “language which injures the image or reputation of the Dealership” contravened Section 7); Costco Wholesale Corp., 358 N.L.R.B. 106 (2012) (“statements posted electronically . . . that damage the Company” were protected speech); 29 U.S.C. § 157.
(Development Authored by Christy Wu)