A recent decision from the National Labor Relation Board's ("NLRB's") Division of Judges further exemplifies the NLRB's proactive approach in scrutinizing both union and non-union employers' social media policies. In Kroger Co. v. Granger, the judge found that several provisions of the supermarket chain's social media policy violated the National Labor Relations Act ("NLRA"). If an employer has a social media policy, it likely contains some provisions similar to the overbroad ones in this case. Below are the top takeaways for employers:
- Carefully tailor required disclaimers that employees do not speak for the company. Kroger required its employees who identified themselves as employees and published work-related information online to use a disclaimer stating that their comments did not represent the opinions of Kroger. The judge held this requirement to be unlawful for a number of reasons, including how many types of communications would be affected, the chilling effect on employees' protected speech, and the extremely low likelihood that an employee's discussion about the latest viral video would be confused for an official corporate communication.
- Be cautious about requiring company permission to use intellectual property ? including logos or banners. Kroger's policy requiring employees to seek permission before using Kroger's copyrights, trademarks, patents, or trade secrets, including logos and banners, was struck down as overbroad because it restricted lawful uses of intellectual property, such as using a company logo on a picket sign. Instead, employers should craft policies requiring employees to comply with intellectual property laws and reserving their right to protect their intellectual property.
- Avoid overbroad restrictions on discussing confidential or proprietary information. Kroger's policy prohibiting employees from commenting on "rumors or speculation related to the Company's business plans" was unlawful because such a broad prohibition could chill protected discussions about transfers, shutdowns, and layoffs. Employees cannot be penalized for making merely false statements, but maliciously untrue statements or gossip may be prohibited.
- Do not prohibit online behavior that reflects negatively upon the company. Kroger's overbroad policy prohibited online behavior that would be "inappropriate at work" or that "reflect[ed] a negative or inaccurate depiction" or was disparaging of Kroger. Many types of protected activity can reflect negatively on a company (like a strike or wage complaint, for example), and these activities cannot be prohibited through company policies.
Kroger was ordered to post notices stating that the company had violated federal law, to immediately cease enforcing the policies, and to amend or rescind them within 14 days.
As the law on social media policies continues to develop, employers should review their social media policies as closely as they monitor their Facebook feeds, and should speak to counsel about any concerns.