Decision: A National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) recently ruled in Kroger Co. of Michigan and Anita Grangerthat the Kroger Co. maintained an overbroad online communications policy, in part, due to the policy’s requirement that workers use a specific disclaimer if they identified themselves as a company associate and “publish[ed] any work-related information online.” Noting that the issue was one of first impression, the ALJ held that the requirement placed an unreasonable burden on employees’ rights to engage in concerted activity under Section 7 of the National Labor Relations Act. According to the ALJ, “the 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.” The ALJ did recognize that employers have a legitimate interest in “stopping unauthorized employees from speaking on behalf of the company, and indeed, from being perceived to have spoken on behalf of the company,” but determined that “much of the communications covered by [Kroger’s] rule reasonably could never be confused for employer sanctioned speech.”
Impact: This decision throws into question what had previously seemed to be a permissible policy provision. A May 2012 memorandum from the NLRB general counsel’s office discussing social media policies found permissible a policy provision requiring employees that make online statements about work-related matters to “make it clear that [they] are not speaking on behalf of [the Employer]” and suggesting that such employees include a disclaimer such as “‘the postings on this site are my own and do not necessarily reflect the views of [Employer].’” According to the ALJ in the Kroger case, however, this conclusion in the May 2012 memorandum was an “opinion” that lacked precedential value. Accordingly, employers must find a way to balance their legitimate interest with employees’ Section 7 rights. Given the uncertainty in this area, employers should regularly review their online communications and social media policies and consult with counsel to adjust policies to take account of the most recent pronouncements from the NLRB.