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NLRB Voids Employer Policy Prohibiting Electronic Posting of Harmful Statements

    Client Alerts
  • September 21, 2012

Earlier this month, the National Labor Relations Board continued its recent string of decisions declaring non-unionized employee handbook provisions to violate federal labor law. In a decision involving Costco Warehouse Corp., the NLRB applied its earlier reasoning to a policy that prohibited employees from electronic posting of statements that damage the company's reputation or any person's reputation.

The NLRB interpreted this policy to directly chill employees' rights to engage in concerted activity under Section 7 of the National Labor Relations Act. Costco argued that the policy was intended and implemented to prevent employees from engaging in defamatory conduct with regard to co-workers, supervisors or the company, and could not reasonably be interpreted to exclude employees from communicating about terms and conditions of employment. The Board stated that the policy failed to specifically exclude protected Section 7 rights, and therefore could lead employees to conclude
that concerted activity was prohibited.

This opinion echoes earlier NLRB decisions finding that ordinary disciplinary and related policies in employee handbooks deter concerted activity. In light of these decisions, employers should review their handbooks to make sure that electronic communication, at-will employment, and non-solicitation policies contain appropriate restrictions and clarification that their terms do not apply to employees' rights to concerted activity.