Social Media Policies — ALJ Disregards Guidance From NLRB General Counsel

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If you identify yourself as an associate of the Company and publish any work-related information online, you must use this disclaimer: "The postings on this site are my own and don't necessarily represent the positions, strategies or opinions of the Company."


This statement was found to be unlawful in an April 22, 2014 decision by an Administrative Law Judge.  The ALJ reasoned that the word "publish" when using "online communications" would cover employees posting online even when using their own computers on their own time.  The employer's requirement to include the disclaimer in conjunction with these communications was considered unduly burdensome.

A core activity protected by the National Labor Relations Act is the right of employees to discuss, debate, and communicate with each other regarding their terms and conditions of employment.

The ALJ conceded that an employer has a legitimate interest in stopping unauthorized employees from speaking on behalf of a company.  However, the ALJ found that it was not reasonable to believe that all communications by employees would be confused for employer-sanctioned speech.

The ALJ also rejected the opinion from the General Counsel of the NLRB that approved the following Social Media Policy language,   

Any comments directly or indirectly relating to [Employer] must include the following disclaimer: The postings on this site are my own and do not represent [Employer's] positions, strategies or opinions.

 

It remains to be seen whether the Employer will appeal this decision.  In any event, employers need to keep a close watch on how social media policies are being interpreted.

Written by:

Published In:

ALJ

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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