Social media policies and organizational implementation

Social Media

Recently, the National Labor Relations Board (NLRB) made its first social media-related ruling. The board adjudicated a case against Costco, and in this case the NLRB struck down Costco's social media policy as standing in violation of the workers' right to free speech (Little, 2012). The Board found that Costco's policy on social media usage was overly broad. The policy held that employees were prohibited from posting statements that "damage" the company and the policy was incorporated into the Costco Employment Agreement. The NLRB held that this policy was too broad. Specifically, some forms of speech by workers are considered to be protected speech. Protected speech includes work-related complaints, which are given this protection so that they can communicate their grievances both to other employees and to the company. This protection is related to the workers' legal right to organize.

The NLRB applies the same standards to protected labor speech as judges do to First Amendment cases. This interpretation is explained in the following passage: "Costco's policy had a reasonable tendency to inhibit employees' protected activity" (Godard, 2012). Essentially, if an employee cannot reasonably understand the difference between punishable and unpunishable speech, the employee is likely to avoid engaging in such speech altogether. That outcome appears to have been a key motivation for Costco. However, if there is a chance that an employee will feel uncomfortable making protected speech for fear of punishment under vague rules, those rules are in violation of the applicable code that protects the speech. The doctrine of "no infringement," meaning real, perceived or potential, is being applied here by the NLRB.

2. I agree with the NLRB on this decision. The wording in Costco's employee agreement was far too vague. The wording seemed as though the employee could be subject to punishment for any statement on social media that a Costco manager could construe as negative or damaging to the company. Such rules are not allowed to be vague and subjective, because subjective application of the rule could see employees being punished for protected speech. Even the legal definition of protected speech in this instance is somewhat vague. Thus, neither Costco nor the National Labor Relations Act can clearly differentiate between protected and unprotected speech in all instances. As a result, neither can employees. Given that there can be no infringement of any sort on protected labor speech, Costco's blanket statement in the employment agreement thus violates the NLRA.

It is important for workers to have specific rights, and these extend to both the airing of grievances and discussion of (legal) worker action against the company, up to and including unionization. These rules are at the heart of our labor system, because they provide the means for workers to protect themselves. Without specific and clear definitions on the part of either the NLRA or the company, workers will remain unclear about what speech is protected and what is not. While the company can work to clarify the language of its social media agreement, it cannot compel the NLRB to change the language of the NLRA. As such, companies run afoul with most social media agreements, unless those agreements are worded to specifically exclude all forms of protected speech.

3. The decision in this case is likely to harm employee relations for a couple of reasons. While the employees do gain benefit from the decision with respect to free speech protections, the NLRB lacks enforcement mechanisms for subtle retribution on the part of the company. While an employee cannot be specifically censured for a social media posting, that employee could be overlooked for promotion, given less desirable duties and other punishments, and have those punishments attributed to other factors. The ruling, therefore only diminishes the ability of the company to punish. Thus, the climate of fear does not change, and because employees might feel more protected they are more likely to engage in negative postings. Further, the company now has more fear of employees than it did before. While its policy was clearly the result of fear, now that fear is greater, and that will not lead to positive outcomes for employees.