An NLRB administrative law judge recently found various provisions of The Kroger Co. of Michigan’s online communications policy to be impermissible. One such provision includes a company mandated disclaimer to be used by employees when they identify themselves as being associated with the company or publishing anything about the company. The decision reflects the importance of carefully crafting corporate social media policies with one eye on protecting the organization and the other on compliance with the National Labor Relations Act.
The offending disclaimer provision 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 Kroger Co. family of stores.”
Administrative Law Judge David I. Goldman writes, “The ultimate issue, then, is whether requiring a disclaimer for every posting by an individual identified as a Kroger employee that conveys “work-related” information unduly burdens legitimate Section 7 communication to an extent that would be likely to chill employees’ willingness to engage in it.” Section 7 of the Act provides:
Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities.
The issue as framed by the ALJ was answered in the affirmative. “Kroger’s rule is manifestly broader than its legitimate interest. It seeks to protect Kroger’s interest by requiring the imposition of a disclaimer on every identifiabl[y]-employee communication conveying work-related information.” Earlier in the decision ALJ Goldman notes, “It would include an online comment made in response to a news article, on Facebook, blogs –examples are endless.”
This recent decision continues to make the balance between managing one’s corporate reputation and adhering to federal law particularly challenging within the context of online communications.
You can read the full decision here.
