Legal and Ethical Context

Social Media The National Labor Relations Board (NLRB) has recently ruled that Costco's policy with respect to social media usage by their employees was too broad. Specifically, the ruling stated that the wording of Costco's policy "could effectively stifle its employees' right to free speech" under Section 7 of the National Labor Relations Act. This section "protects employees who choose to take part in grievances, on-the-job protests, picketing and strikes" (Belicove, 2012).

The case was brought to the NLRB by Local 371 of the United Food and Commercial Workers, who argued that the company's policies with respect to social media usage violated worker's right to free speech under the NLRA. The NLRB panel found that Costco's provisions were too broad, failing to exclude protected speech from the speech that was subject to penalty. The NLRB also struck down a number of other rules that were in the Costco Employee Agreement as either being too broad or in violation of employee rights. 2.

I agree with the findings of the NLRB in this case. Section 7 of the NLRA explicitly grants employees the right to organize, including the right to "engage in other concerted activities for the purpose of collective bargaining or mutual aid or protection…" The Costco policy was ruled to not specifically exclude such speech, meaning that an employee could be entirely unsure of what speech fell under the company's policy and what did not.

The employee might feel that any speech that was critical of the company was subject to punishment, when in fact only certain kinds of speech are legally allowed to be punished. In particular, the wording of Section 7 "mutual aid or protection" is broad, allowing for a wide range of speech that is critical of the company. An important premise that underpins this decision is social media is a likely forum for employee expression.

Thus, postings on social media, no matter how crudely worded, can be construed as a means of communicating with other workers about grievances. We know from First Amendment cases that when a law might have the effect of stifling protected speech, that law is likely to be struck down. The NLRB, in its decision against Costco, is applying that same fundamental logic.

Costco's policy was broad, and failed to set clear definitions for what speech was covered under it, essentially failing to recognize that there is a category of protected speech under the NLRA. 3. The decision in this case removes a barrier to free speech that the company sought to create. Costco's policy was, in effect, designed to protect Costco. The company overreached in its effort to protect itself against harmful speech against it in social media.

The NLRB has basically thrown out that section of the Costco Employment Agreement, and the company will need to dramatically re-write those sections of its agreement. That section of the Costco Employment Agreement stifled freedom of speech, and employees would essentially have had good reason to fear making any post about the company or their jobs for fear of reprisal.

The policy was so broad that something like "Ugh, another Monday" posted by someone who has Costco listed as an employer could theoretically have been subject to sanction from the company. By removing the regulation, the NLRB has allowed Costco employees to communicate more freely with each other. This fosters a greater degree of trust between the employees and the company, because the employees no longer have to fear that the company is looking over their shoulder, monitoring their posts to social media.

Granting employees more freedom of expression and reducing their fears of such expression is a positive step in creating a workplace environment based on mutual trust. Before, employees might have seen a co-worker punished for an innocuous post, for example, creating significant discord. Management now will probably need to be less paranoid about employee postings, and the ruling might also force Costco to ensure that its employees are treated well, knowing that mistreatment could wind up in a posting online.

There is the risk that the culture of fear that led to the policy in the first place might cause Costco management to be even more distrustful, but having the law put limits on their ability to control employee speech will force them to deal with this fear in a more mature manner. 4. For Costco, it is important to communicate this decision to all of my employees.

The case garnered a fair amount of media attention, so the employees will either hear about it through the media or through the union, neither of which is an ideal situation for the company. Thus, the company needs to communications. The first is that it needs to announce the precise decision, that it will respect the decision, and explain which parts of the Employment Agreement are no longer legally valid. The second communication will come in the form of an amended Employment Agreement that the employees will then sign.

I would choose not to have a social media policy in the amended agreement. There are a few good reasons for this. The first is that the situation arose in the first place because the company wrote an agreement without consulting with either the union or the NLRB. By freelancing on the wording of the Employment Agreement, Costco found itself in violation of the NLRA.

Any social media component of the future Employment Agreement would naturally need to be written in conjunction with the union, or guidance from the NLRB as to what might be suitable wording. The second reason I would not have a social media policy is because it is unlikely that suitable wording will be found. The wording of Section 7 is broad, and open to significant interpretation. Any social media policy would need to be written with that in mind.

The problem is that to avoid running afoul of such broad wording, the policy would be essentially meaningless. Having a policy that sounds tough but is worded in such.