Last week, an Administrative Law Judge for the National Labor Relations Board (Federal) ruled that an employer cannot require its employees to post a disclaimer on the employee’s social media site. Employers in an effort to “control” certain statements by employees on such sites have given them the language to post. As an example, the employees in this case were required to post the following:
“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 NLRB administrative law judge concluded that Kroger’s Online Communications Policy—which required that its 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 to ensure that the readers of the employee’s social media site were not the words nor the opinions of the employer.
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 never—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 speech.
Employers on a national basis need to review their policies regarding social media. There has been, and will continue to be, a high volume of litigation in this area. The legalities and illegalities in this area simply continue to evolve as employees and employers alike learn what they can do, and not do, regarding these social media outlets.
In offering an opinion, I would strongly suggest that employers stay away from trying to control their employees regarding their involvement with these sites. Furthermore, managers and supervisors should refrain from participating and fraternizing with their staff members on these sites to avoid any potential litigation in this area.
REMINDER: PODCAST topic from this past Saturday is regarding “Background Checks.” It is available on iTunes or go to http://www.pottsandassociates.com.