Companies cannot have every employee with a Twitter account spreading (mis)information about their business, products or services to hundreds or thousands of followers, but the National Labor Relations Board is sending mixed signals about what, if anything, employers can do about it.

Good News: While the Board has been a relentless foe of almost all social media policies, a small bright spot has been that in 2012 the General Counsel issued a memo (OM 12-59) blessing policies requiring employees to include a disclaimer that they are not speaking on behalf of their employer when making posting relating to their employer.

The memo concluded that employers have “a legitimate need for a disclaimer to protect [themselves] from unauthorized postings made to promote [their] products or services, and this requirement would not unduly burden employees in the exercise of their . . . rights to discuss working conditions.”

Not so fast: A recent ALJ opinion flatly rejected the General Counsel’s guidance as “unpersuasive” and now employers have reason to be confused as to what the Act (and the Board) allows.  The case is available here and the provision of online communications policy in question reads:

If you identify yourself as an associate of the Company and publish any work-related information online, you must use this disclaimer: “The postings on this site are my own and do not necessarily represent the postings, strategies or opinions of the [the Company].

The ALJ read the provision to require inclusion of the disclaimer just about every time an employee posts about workplace conditions.  Indeed, the ALJ speculated that even “liking” another person’s comment about working conditions on Facebook would require a disclaimer, but then added “although it is hard to imagine how that could be accomplished.”

The ALJ did concede that companies have a legitimate interest in their employees not appearing to speak on their behalf.  Unfortunately, he gave short shrift to that interest, finding that “unless an employee is actively seeking to give the appearance of speaking on behalf of an employer,” it “defies common sense” that the vast majority of employee postings would be misconstrued as statements of the company.

Not surprisingly, the ALJ determined that the policy was extremely burdensome and unlawful because it would have a reasonable tendency to chill speech protected by the National Labor Relations Act.

Now what?  There are three big takeaways for employers:

  1. The decision may be appealed.  This opinion muddies the water and leaves employers without clear guidance on an important issue.  An appeal would give the Board an opportunity to reinstitute clarity, one way or the other.
  2. The policy is only burdensome if read to require a disclaimer every time an employee posts about the employer.  A policy that instead required a single disclaimer, say on an employee’s profile page, could shift the balance of burden versus legitimate interest in favor of the employer.
  3. Employers can continue to prohibit employees from appearing to speak on behalfof the company without authorization.  The decision unambiguously noted that “it may be assumed that employees do not have a legitimate . . . right to speak without authorization on behalf of their employer.”  (Emphasis in original).  Of course, absent a disclaimer, the practical question is how?