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NLRB: Employers Cannot Require Disclaimer to Accompany Social Media Posts By Employees


The Kroger Company of Michigan - NLRB

Facts:  Anita Granger filed an unfair labor practice charge against Kroger on February 15, 2013, in regard to the social media disclaimer that Kroger required its employees to post whenever an employee posted something online.  Specifically, Kroger stated that in its handbook that if employees identified themselves as an associate of the company or published any work related information online, the following disclaimer had to be included:  "The postings on this site are my own and don't necessarily represent the positions, strategies, or opinions of The Kroger Co. family of stores."

The issue in this case centers on whether the disclaimer requirement violated the National Labor Relations Act ("NLRA"), specifically Section 7.  Section 7 states:

  • "Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any and all such activities."

A key protection provided by Section 7 is the fact that employees have the right to discuss, debate, and communicate with each other regarding their workplace terms and conditions.
 
Holding:  The NLRB Administrative Law Judge held the disclaimer language included in Kroger's handbook was illegal, in violation of Section 7 of the NLRA.  Specifically, the Judge noted that where the rules are likely to have a chilling effect on Section 7 rights, the Board may conclude that their maintenance is an unfair labor practice.

In this case, the Judge held that even if Kroger had a legitimate interest in limiting unauthorized communication, the disclaimer requirement had no significant legitimate justification, and in effect would chill Section 7 speech.  As a result, the disclaimer requirement imposed on Kroger's employees was found to be illegal and therefore was an unfair labor practice.

Date:  April 22, 2014

Opinion:  http://www.nlrb.gov/case/07-CA-098566

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