Social Media Policy. Those three words make both union and non-union employers shudder. And who can blame them? Each day seems to bring new guidance, a new decision, and a new headline about a company’s social media policy being declared unlawful. Most recently, The Kroger Co.’s online communication policy got sacked.
The National Labor Relations Act (NLRA), which is enforced by the National Labor Relations Board (NLRB), protects employees who engage in “protected concerted activity.” Concerted activity includes discussions regarding terms and conditions of employment.
The NLRA used to just apply to the company cafeteria, coffee station, and the water cooler. But with Facebook, Twitter, and blogs becoming the epicenter of workplace conversation, the NLRB’s new focus is employers’ social media policies that limit what workers can say online.
On April 22, 2014, an NLRB Administrative Law Judge (ALJ) ruled that four provisions in Kroger’s online communications policy violated federal labor law because the provisions would “reasonably tend to chill employees in the exercise of their rights.”
One provision required employees to use a prescribed disclaimer if they identified themselves as Kroger employees and “publish[ed] any work related information online.” The disclaimer specified that the postings of the employee did not represent the opinions of Kroger.
The ALJ determined that the provision was “extremely burdensome” due to the number of communications it affected, including Facebook posts, comments on blogs and news articles, and even “likes”. While the ALJ recognized Kroger’s legitimate interest in employees not appearing to be the company’s spokesperson, he wrote that the “disclaimer rule is manifestly broader than its legitimate interest.”
Another provision the ALJ struck down was the restriction on the discussion of confidential and proprietary information. The rule prohibiting employees from commenting on “rumors, speculation or personnel matters” could be construed as prohibiting discussion of issues “at the heart” of protected activity including wages and other terms and conditions of employment. Similarly, the ALJ invalidated a provision prohibiting comments on rumors or speculation related to the Company’s “business plans” since it encompassed subjects on which employees have a right to speak including transfers, potential shutdown, closures, and layoffs. The ALJ distinguished this provision from a lawful provision proscribing “harmful gossip,” reasoning that Kroger’s provision prohibited discussion on specific topics that included protected subjects.
Kroger found out the hard way what other employers have learned before – even innocuous sounding social media policies may violate the NLRA. If you’ve been using a policy for a while, or if you’re thinking about adopting one, you better think through all the implications. In this case, you don’t want to “go Krogering.”