On April 22, an NLRB Administrative Law Judge concluded that
four provisions of Kroger Co. of Michigan's Online
Communications Policy violate Section 8(a)(1) of the National Labor
Relations Act (the "Act") because the provisions are
overly broad limitations on employees' right to communicate
regarding the terms and conditions of their employment.
First, addressing an apparent issue of first impression, the ALJ
considered a provision that requires employees who, while involved
in online communications (including on their own computers and
outside of work hours), identify themselves as Kroger employees and
publish work-related information, to use a disclaimer stating that
the postings do not necessarily represent the opinions of Kroger.
The ALJ concluded that the disclaimer requirement unduly burdens
employees' Section 7 rights because it would be likely to chill
employees' willingness to engage in protected communications.
The ALJ acknowledged that Kroger has a legitimate interest in
employees' not appearing to speak on its behalf. Nevertheless,
he concluded that the mandatory disclaimer is broader than
necessary to protect that interest because few employee
communications would likely be misconstrued as statements of
Second, the ALJ considered a provision that prohibits employees
from using without permission Kroger's intellectual property,
including its logos or product trade names. The ALJ found this
provision overly broad because it prohibits many nonoffensive uses
of Kroger's intellectual property (such as logos) that
employees might use for purposes of protected communications.
Third, the ALJ considered a provision restricting employees'
discussion of Kroger's confidential and proprietary
information. He found this provision to violate Section 8 because
it prohibits many employee communications that would be protected
by Section 7, such as discussions regarding personnel matters and
Fourth, the ALJ considered a provision barring employees from
online behavior that would be inappropriate at work and that would
reflect negatively on Kroger. The ALJ found this provision also to
be overly broad because it could bar protected speech such as
criticism of Kroger's treatment of employees or discussion of
wages, hours, and terms of employment.
The ALJ also concluded that a separate provision regarding the
possibility of disciplinary action for violations of the online
communications policy is not an independent violation of the
Employers are reminded to review their online communications
policies to ensure they serve the company's needs without
running afoul of the law.
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Though the two guides are quite similar in form and content, the November publication further specifies the rights of applicants and employees under federal laws such as the Fair Credit Reporting Act when an employer runs a background check.
In prior articles, we have discussed various decisions by the National Labor Relations Board ("NLRB" or the "Board") protecting employee social media activity as concerted activity under Section 7 the National Labor Relations Act (the "Act").