Legal

NLRB judge: Employers Cannot Require Employee Social Media Disclaimers

By Jon Hyman

Apr. 28, 2014

"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."

In The Kroger Company of Michigan [pdf], a National Labor Relations Board administrative law judge concluded that Kroger’s Online Communications Policy — which required that it’s employees post the above-quoted disclaimer along with the publishing of any work-related online content — was illegal.

The ALJ conceded that Kroger’s has a legitimate interest in limiting unauthorized communications. Nevertheless, the perceived over-breadth of the policy trumped the employer’s legitimate interest:

An ever increasing amount of social, political, and personal communication, increasingly by people of all ages, takes place online.… A rule that required Kroger employees, who are identified as such, to mouth a disclaimer whenever they conversed with others about “work-related information,” while standing on a street corner, picket line, in church, in a union meeting, or in their home, would neve r— ever — withstand scrutiny. As with traditional, in-person communication, this required online disclaimer has no significant legitimate justification and is, indeed, burdensome to the point that it would have a tendency to chill legitimate section 7 speech. 

How does a statement by an employee, on the employee’s personal Facebook page, that the posts are his and not his employer’s, chill an employee from expressing an opinion about work? To the contrary, this disclaimer would seem to have the opposite effect, freeing the employee to talk about work because he or she has already disclaimed that the post is merely the employee’s personal opinion, and not an official statement of the employer.

As Eric Meyer pointed out in discussing this decision last week, Kroger merely serves to add to the confusion that already exists around workplace social media policies. As for me, I see little harm in these types of disclaimers.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

What’s New at Workforce.com?

blog workforce

Come see what we’re building in the world of predictive employee scheduling, superior labor insights and next-gen employee apps. We’re on a mission to automate workforce management for hourly employees and bring productivity, optimization and engagement to the frontline.

Book a call
See the software

Related Articles

workforce blog

Compliance

Minimum Wage by State in 2023 – All You Need to Know

Summary Twenty-three states and D.C. raised their minimum wage rates in 2023, effective January 1.  Thr...

federal law, minimum wage, pay rates, state law, wage law compliance

workforce blog

Legal

New Labor Laws Taking Effect in 2023

The new year is fast approaching, and with its arrival comes a host of new labor laws that will impact ...

labor laws, minimum wage, wage and hour law

workforce blog

Legal

Wage and Hour Laws in 2022: What Employers Need to Know

Whether a mom-and-pop shop with a handful of employees or a large corporation staffing thousands, compl...

compliance, wage and hour law