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 Kroger's.

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 business plans.

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 Act.

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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