This past year, the NLRB issued two opinions which provided guideposts on the extent to which employers may require employees to include disclaimers on personal social media posts that the statements reflect their own views, and not the views of the employer.

In a recently published advice memorandum, the NLRB Associate General Counsel opined that an employer does have a legitimate interest in protecting itself against unauthorized postings made purportedly on its behalf. Therefore, an employer’s social media policy requiring individuals who identified themselves as company employees on a site to include a disclaimer explaining that their views on such site were their own and did not reflect the views of their employer was lawful.

The advice memorandum drew the distinction between a posting on a site and a text message, noting that requiring an employee append a disclaimer to a text message could be unduly burdensome.

Earlier this year, in a decision pertaining to the social media policy of a national supermarket chain, an administrative law judge concluded that a similar disclaimer, required to be used by employees on every instance of publishing work related information online, is chilling the employees’ exercise of their NLRA rights, unreasonably burdensome and violates the NLRA.

Although the rules on disclaimers employees must make when identifying themselves with the employer online are not entirely clear in light of NLRB’s case-by-case approach, it is clear the NLRB wants to see employers narrow their disclaimer requirements to no more than the extent necessary to protect their legitimate interest in preventing employees from making unauthorized statements in social media.

ACTION ITEM

Employers should review their social media policies to make sure that any obligations or restrictions, in particular disclaimers, imposed on employees are founded in law (such as FTC disclaimer requirements), not overly broad or burdensome, and limited to the extent necessary to protect the legitimate interest of the employer in ensuring that an employee’s personal musings do not become imputed to the employer.