It’s been a while since I took a look at the National Labor Relations Board (NLRB) and its rulings on employer social media policies. A recent case involving the grocery chain Kroger addressed the question of whether employers can require employees to post a disclaimer whenever they communicate about work-related issues online. This is an exploration of an evolving part of social media law.
Here are a few previous posts about the NLRB’s social media rulings: the Facebook case, the Costco case, and a case regarding a BMW dealership.
To recap: the NLRB has taken a strong stand on employers’ social media policies with respect to the National Labor Relations Act (the “NLRA”). The NLRA does not allow an employer to take actions or have a policy that has the may actually or potentially “chill” an employee’s right to engage in protected concerted activity. Concerted activity essentially means discussing work conditions with other employees. The Act is violated if employees would reasonably interpret the language of a policy to prohibit Section 7 activity or if the policy has been applied to restrict the exercise of Section 7 rights (this is referring to Section 7 of the NLRA). So if an employer’s social media policy could be interpreted or applied in such a way that prohibits the exercise of Section 7 rights, it could be struck down by the NLRB.
The Kroger opinion can be read here [pdf]. One of the clauses in question read:
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 do not necessarily represent the postings, strategies or opinions of The Kroger Co. family of stores.”
Given the breadth of online communications to which the rule applies, it would be extremely burdensome to have to post the disclaimer in each instance, or on each new page, and this would have a reasonable tendency to chill Section 7 activity in this regard.
They reasoned that Kroger’s disclaimer requirement could be understood to apply to any work-related online communications, even something to trivial as a Facebook “like.” They went on:
Moreover, the insistence that every employee comment on Kroger’s workplace be accompanied by the disclaimer poses more subtle risks of chilling effects. It is an implicit reminder of the involvement and insertion of the employer into every work-related online comment or discussion engaged in by the employee. It denies the employee the right to speak publicly about Kroger’s workplace with others without the intrusive demand by the employer that it may force its disclaimer upon the discussion. And finally, there is the implicit but unavoidable specter of enforcement: if the disclaimer is mandatory, how will its use be monitored and enforced by the employer? Not all online communications are public, but they are all subject to monitoring with and sometimes without the knowledge of the individuals engaged in discussion. This prospect, which is implicit in a rule such as this, cannot but have a tendency to chill Section 7 speech, just as would an employer that threatened to check union meetings and gatherings to see if disclaimer rules are being complied with in that setting.
The NLRB emphasized that employees do not have a right to speak on behalf of their employers without authorization. However, they found Kroger’s disclaimer rule to be overbroad and thus held it to be in violation of the NLRA. This was stated not just in relation to the particular case at hand, but as a general rule that all covered US-based employers should take note of:
[T]he requirement that a disclaimer be posted by the employee every time he or she speaks on work related issues and is identifiable as an employee of the employer, is unduly burdensome, well beyond any legitimate interest of the employer, and will have a tendency to chill legitimate Section 7 speech by the burden it brings to it.
Given that these types of disclaimer requirements are very common, employers of all sizes should take note and have their policy reviewed by a knowledgable professional.