An administrative law judge ("ALJ") writing on behalf of the National Labor Relations Board ("NLRB") reviewed the social media/on line communications policy of The Kroger Co. of Michigan, a retail grocery chain, in the context of an unfair labor practices complaint.  In the decision issued on April 22, 2014, the ALJ ruled that portions of Kroger's policy were unlawfully broad and in violation of Section 7 of the National Labor Relations Act.

What was the offending language?

If you identify yourself as an associate of the Company and publish any work-related information online, you must use this disclaimer: "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."

It is fairly common for employers to establish policies requiring that employees use disclaimers of this nature when posting on line.  The ALJ, however, stated that "there is no question but that this rule implicates much Section 7 activity.  While not all work-related information is potentially protected by Section 7, a great deal of it is."

The ALJ conceded that an employer has a legitimate interest in stopping unauthorized employees from speaking on behalf of the company and even from being perceived as speaking on behalf of the company.  He determined that in evaluating the employer policy, it was necessary to consider what the risk is that, in the absence of a disclaimer, section 7 activity, i.e. discussing the terms and conditions of employment, would be mistaken for employer sanctioned speech.  The ALJ concluded that a disclaimer is problematic under the Act if it is likely to chill legitimate and protected employee speech.

In striking down the disclaimer language the ALJ stated that "Given the breadth of online communications to which the rule applies, it would be extremely burdensome to have to post the disclaimer in each instance or on each new page, and this would have a reasonable tendency to chill Section 7 activity in this regard."  The Decision itself is worth the read in that it gives startling insight into the reasoning of at least this one ALJ.

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