To what extent can employers reasonably regulate employee conduct and the use of electronic communications and social media? Two recent court decisions provide some guidance, although questions do remain.
In the recent Costco Wholesale Corp. decision, the National Labor Relations Board held that Costco’s defamation policy that prohibited employees from electronically posting statements that “damage the Company, defame any individual or damage any person’s reputation” was unlawfully overbroad, because it could reasonably tend to chill National Labor Relations Act (NLRA) rights. With that said, the Board also held that Costco’s rule requiring employees to use “appropriate business decorum” did not violate the NLRA.
Meanwhile, in the case of Karl Knauz Motors, Inc., the Board upheld the firing of an employee who made tactless and unprotected comments about the employer on Facebook. The Board found that part of the employer’s “courtesy rule” stating that employees should be “courteous, polite and friendly” to customers, vendors, and employees did not violate the NLRA. The Board noted that to the extent in which the rule discouraged employees from being “disrespectful” or using “profanity or any other language which injures the image or reputation” of the employer violated the NLRA.
Realistically, we expect this area of employer control or influence over employee conduct in the social media realm to continue to evolve. These two decisions provide us with some guidance. Importantly, employers need to be aware of the potential to chill what otherwise are known as free speech rights; employees will always have the right to speak the truth about a current or former employer, publicly or privately. So, for employers who are sensitive to their public image in particular, they may wish to implement policies that focus on reasonable restrictions related to reasonable standards tied to the business’ image and integrity, and business operational standards are fair game.
SMART TIP: Many employers don’t even have a social media policy in place because this area is so new and subject to rapid evolution. Other employers may have policies in place that require revisiting to ensure that they do not unreasonably restrict employee rights. We encourage employers to have a policy in place ? one that is consistent with the more comprehensive policies and culture as outlined in the employer’s Employee Handbook. Consistency is key and tying employee conduct to key business objectives related to image can prove helpful.