On September 7, 2012, the National Labor Relations Board invalidated Costco Wholesale Corp.’s policy of prohibiting employee electronic posts in its first decision involving an employer’s social media policy.  In Costco Wholesale Corporation and UFCW Local 371, Case No. 3A-CA-012421, the Board held, among other things, that Costco’s rule prohibiting employees from posting statements electronically that “damage the Company, defame any individual or damage any person’s reputation” was overly broad.  The Board reasoned that the policy language contained no restrictions on its application and, thus, clearly encompassed protected concerted communications, such as speech that is critical of Costco or its agents.  Accordingly, the rule had a tendency to chill employees’ protected activity in violation of Section 8(a)(1) of the National Labor Relations Act, which makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by Section 7.


Continue Reading NLRB Invalidates Costco’s Social Media Policy

In recent years, the National Labor Relations Board (NLRB) and unions have placed a growing emphasis on extending the application of labor law into the social media arena.  As part of this initiative, the NLRB has adopted a strong stance against social media policies that it believes pose a threat to employees’ right to engage in protected activities under Section 7 of the National Labor Relations Act (NLRA).

Continue Reading NLRB On A Mission To Curb Anti-Social Media Policies In The Workplace

Last week, the NLRB’s Acting General Counsel, Lafe Solomon, released a second report containing guidance relating to employees’ use of social media.  This report comes less than six months after the release of the NLRB’s first report on the subject in August 2011.  Like the August report, the new release summarizes a number of recent cases decided by the NLRB in which an employee was terminated, at least in part, because of his or her comments on social media websites.

Continue Reading NLRB Releases Second Round Of Guidance For Social Media Cases

The focus on social media by the National Labor Relations Board (“NLRB” or the “Board”) continues as evidenced by its recent report issued by Acting General Counsel Lafe Solomon.  The report discusses fourteen social media cases that were decided by the Board after Regional Directors submitted requests for advice to the Board’s Division of Advice.  The cases highlighted by Solomon give some insight to how the NLRB will handle various social media issues in the future.


Continue Reading Employers Take Note: NLRB Provides Guidance For Social Media Cases

In October 2010, the National Labor Relations Board (“NLRB”) raised the eyebrows of employers and observers when its Hartford, Connecticut Regional Office issued an unfair labor practice complaint against an employer after it allegedly terminated an employee for posting unflattering statements about her supervisor on Facebook.  The NLRB and the company settled the complaint in February 2011, on condition that the company revise its rules so they do not improperly restrict employees from discussing their wages, hours and working conditions with coworkers and others while not at work.  The employer also agreed that it would not discipline or discharge employees for engaging in such discussions.

Continue Reading Update: NLRB Continues To Closely Probe Employer Terminations Following Employee Complaints On Social Media

The National Labor Relations Board (“NLRB”) regional offices addressing complaints involving employers’ social media policies must seek advice from the NLRB’s Division of Advice before taking any action. The memorandum, issued by the NLRB’s Office of the General Counsel on April 12th, added social media disputes to the list of matters that must be submitted to the Division of Advice.  The Division of Advice is responsible for issuing opinions on difficult or novel labor issues. 


Continue Reading Update: NLRB Remains Focused on Social Media Issues

Most of us have sent a text while driving, and we all know that this practice can be dangerous. This is as true on the rural roads of America, as it is on the busiest of freeways. It is no surprise, with all of our technological distractions, that motor vehicle crashes are consistently the leading cause of worker fatalities. It is also no surprise that OSHA has taken notice of this issue and is taking action. OSHA is prepared to start issuing citations and fines to employers for distracted driving by employees.

Continue Reading Employee Texting While Driving May Lead To Employer Fines

An employer who allegedly posted to an employee’s Facebook and Twitter accounts without her consent may face liability for its actions, according to a federal judge in Illinois. The case is Maremont v. Susan Fredman Design Group, Ltd., in the U.S. District Court for the Northern District of Illinois (2011 U.S. Dist. LEXIS 26441, March 15, 2011).

Continue Reading Look Before You Tweet: Employer May Be Liable For Impersonating Employee On Facebook, Twitter

Employees are increasingly talking about supervisors and other employees on social networking sites, and sometimes the talk can get nasty.  Complaining about co-workers and supervisors is not new.  However, distributing those complaints via the internet is.  Employers often seek to crack down on such negative talk via policies and disciplinary action.  However, Lafe Solomon, the NLRB’s acting general counsel, has publicly stated that employees have the right to communicate jointly about working conditions, regardless of whether those communications are made on social networking sites or at the company water cooler.  The NLRB will decide the validity of Mr. Solomon’s statement in connection with a recently-issued complaint.


Continue Reading Are Social Networking Sites The New Company Water Cooler? The NLRB’s Acting General Counsel Thinks So.

A recent New York state trial court decision, Romano v. Steelcase Inc., et al., is representative of a recent trend of parties seeking, and courts permitting, discovery of information on social networking sites such as Facebook and MySpace.  Rejecting the plaintiff’s privacy concerns, the Romano court held that such information is discoverable because the plaintiff’s damages are at issue.  The court ordered the release of the plaintiff’s postings, pictures, and other information on the social networking sites.


Continue Reading Court Allows Discovery of Facebook and MySpace Content