Costco restricted employee posts on social media through their social media policy and the NLRB (National Labor Relations Board) ruled that social media policy unfairly restricts employee right to organize and access to collective bargaining. Here’s the offending social media policy statement:
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.
What does this mean to your company’s social media policy?
Well, if you have our social media policy, you’re safe – we stay ahead of the courts and Federal agencies by keeping our fingers on the legal pulse.
But, if you just put something together on your own or modified something you found online, you may face the same penalties faced by Costco. Not only does Costco have to change the offensive policy, a number of additional provisions in their employee handbook were struck down, which interferes with the functioning of the organization. Plus, the ruling comes after 2 years of legal fights between the union and Costco – with the huge costs associated with that fight.
According to Forbes:
In fact — without pointedly using the terms social media, Facebook or Twitter — the NLRB essentially called into question any policy by a company that states employees can be disciplined or fired for posting comments online that may damage the company. Again, the NLRB is suggesting that such policies are overly broad.
And, we’re already seeing the effect of this ruling. Days after the Costco ruling a judge used the precedent to strike down similar elements in the social media policy of Echostar, despite seaming exclusion of speech protected by collective bargaining laws. The judge found fault with a provision regarding social media policy that:
prohibited employees from making disparaging or defamatory comments about the employer or its employees, officers, directors, customers, vendors, etc. Despite other language in the policy that stated the policy would be interpreted to comply with existing laws and urged employees to use “good judgment” and contact human resources with any questions, the administrative law judge found that the prohibition of “disparaging” comments was too broad and would tend to intrude on the rights of employees under the National Labor Relations Act. — Bernstein Shur, JD
Social Media Policy
Several take-aways come from these recent rulings.
Social Media Policy must be narrowly crafted – broad statements reflecting damage to the firms reputation and defamation are specifically excluded from social media policy based on these rulings.
Gagging employees fearing job loss also denies use of an important marketing tool. Energizing your employees’ social networks can be a great way of amplifying your message.
Not having a social media policy in this litigious society isn’t a good thing. It leaves you open to actions and negative rulings if you fire employees without providing prior warning that certain actions in social media are not allowed.