The NLRB has inserted itself– in a BIG way – into the social media conversation by aggressively attacking companies that try to control their on-line reputation. In Kroger Co. of Michigan and Anita Granger, as a recent example, an Administrative Law Judge (ALJ) with the National Labor Relations Board (NLRB) ruled that the Kroger Company’s online communications policy was unlawful. The unlawful policy required that employees include a disclaimer if they chose to post online and identify themselves as a Kroger employee. Seemingly without regard t the company’s interest in controlling their on-line reputation, the judge found that the policy placed an unreasonable burden on the workers’ rights to engage in concerted activity under Section 7 of the National Labor Relations Act (NLRA). In a nutshell, the judge found that requiring the disclaimer had the potential to “chill” employee protected activity by placing extra burdens on their speech.
The decision is notable because a mere 2 years ago the NLRB published a general counsel memorandum in which it found that a policy provision requiring employees to make clear that they were not speaking on behalf of the employer would be permissible. The ALJ in the Granger case, however, declined to follow the memorandum, dismissing it as merely persuasive authority.
NLRA rules are already very complicated, but add to these rules the rapidly changing social media environment and it becomes almost impossible for employers to know how to structure their social media policies. Consulting with counsel on this issue is always the best course.