In recent years, the National Labor Relations Board has attacked a range of employer social media policies that sought to restrict employees’ complaints or disparaging remarks about their employers. The NLRB contends that such communications can be protected concerted activity under federal labor laws, even if the social media postings are available to the general public. Last month, a federal Administrative Law Judge backed the NLRB’s position challenging a social media policy that did not seek to control the employee’s message, but to require that she state that her opinions are not necessarily those of the company.
The Kroger Co. of Michigan v. Granger involved an unfair labor practice charge filed by an employee based on the employer’s online communications policy. The policy required, among other things, that employees identifying themselves as such include the disclaimer in any postings that involve the company. The complaining employee received a written warning when she failed to comply with this requirement.
The ALJ concluded that the Kroger policy violated Section 7 of the NLRA because it could deter employees’ rights to engage in concerted activity. Requiring use of the disclaimer each time an employee posts information involving the company was unreasonably burdensome regardless of the fact that the employer never sought to control the content of the message. Read literally, it would require use of the disclaimer even in situations where the employee “liked” some other comment on Facebook.
The ALJ also stated that requiring use of the disclaimer has a “subtle risk of chilling effects” because it implicitly inserts the employer into every work-related online conversation. Readers will not believe that an employee’s online postings speak on behalf of the company in most cases. The Kroger policy was overbroad because it did not restrict its scope to those situations where actual confusion might arise.
This decision and the NLRB’s position in this case contradict earlier advice provided to employers that allows mandatory use of such disclaimers. The NLRB has also recently reversed its position with regard to other aspects of social media policies, such as blanket prohibitions on use of company logos or other intellectual property in postings by employees. If eventually affirmed by federal courts, these restrictions would leave employers with few if any grounds for taking disciplinary action against employees who use on-line platforms to disparage their employer, disclose confidential business information or attempt to damage the company’s image with customers and the public. According to the NLRB, any online activity that could possibly be considered concerted activity trumps employers’ ability to react to disparaging comments intended to harm the business.