When you join a company you may be accustomed to signing a non-disclosure and non-compete. More companies are now also implementing social media policies that must be acknowledged by employees. As it is, general acceptable social practices for how we are to communicate via the various social media channels are still developing. New work guidelines often speak to how an employee is to handle themselves online, but sometimes these even discuss what is acceptable practice even if the employee is off work and in the privacy of their own home.
The National Labor Relations Board (NLRB) has issued three reports in which this group has evaluated the legality of provisions in social media policies of various employers which have had adverse actions towards employees for violations of company policy. Per the NLRB, “Provisions are found to be unlawful when they interfere with the rights of employees under the National Labor Relations Act (NLRA), such as the right to discuss wages and working conditions with coworkers.”
In September, the NLRB issued its first decision in such a case in Costco Wholesale Corp. and United Food and Commercial Workers Union, Local 371. The decision against Costco found that several parts of the company’s social media policy violated the NLRA for being overbroad. For instance “unauthorized posting, distribution, removal or alteration of any material on Company property” was found to be unlawful because it “explicitly prohibits protected activity such as posting or distribution of any material on company property.”
Another area of the policy outlines that ” [e]very employee is responsible for ensuring that all information relating to Costco, its members, suppliers, employees, and operations is secure, kept in confidence, and not disseminated or misused.” The purpose of this provision being to protect the customer/supplier information to which employees have access. However, again, the NLRB found that the policy was overbroad “since it does not distinguish between information obtained in the normal course of work or information obtained from Respondent’s files or even between information obtained by employees from contact with or discussions with other employees.”
While the NLRB is working to help employers gain a better understanding of what language is and is not considered acceptable practice, there is still much confusion as to what is overbroad. The intent behind many of the policies which the NLRB has determined need changes has been to protect privacy. This may be for the customer or for the company itself. There is a fine line between protecting privacy versus violating the protections given to employees.