The NLRB Flip-Flops on Employee Disclaimers

Last year, the National Labor Relations Board (NLRB) issued an advisory report highlighting the difference between lawful and unlawful social media policies. The full report discusses seven recent NLRB decisions.

According to the report, the key question when developing a social media policy is whether any of the restrictions could be construed “to chill the exercise of Section 7 rights” under the National Labor Relations Act (NLRA) (i.e., does the policy limit an employee’s right to engage in “concerted activities” for the purpose of collective bargaining or other mutual aid or protection?).

Notably, the NLRB’s report stated that an employer’s social media policy could require employees to use disclaimers in their social media posts, such as: “The postings on this site are my own and do not represent [Employer’s] positions, strategies or opinions.”

Last month, however, an NLRB Administrative Law Judge (ALJ) reached the opposite conclusion (and noted that the NLRB’s report lacked precedential value). In Kroger Company of Michigan v. Granger, the ALJ determined that a policy requiring a disclaimer almost identical to the example in the NLRB’s report in fact was unlawful because it was too broad. (The employer’s required disclaimer stated as follows: “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.”) The ALJ reasoned that the policy in question would force employees to use the disclaimer for all online discussions, even for something as innocuous as “liking” an item on Facebook. And, according to the ALJ, there also would be a “subtle risk of chilling effects” because the disclaimer policy implicitly inserts the employer into every work-related online discussion.

Practical Pointer:

  • Employers should ensure that their social media policies protect only legitimate business interests and are not unduly burdensome. A general rule of thumb is that policies may be unlawful if they are ambiguous as to their application to protected activity under Section 7, and contain no limiting language or context that clarifies to employees that the policies do not restrict Section 7 rights. The best policies restrict their own scope by including examples of illegal conduct so that they are not reasonably construed to cover protected activity.
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