NLRB Advice Memorandum Finds Employer's Social Media Disclaimer Policy Is Lawful

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By Michael Loatman

Sept. 23 — A company's social media policy that required workers who identified themselves as company employees to include a disclaimer that explained they were sharing their own views is lawful, according to a National Labor Relation Board Division of Advice memorandum.

Alex Stevens, a labor and employment associate at Haynes and Boone LLP, told Bloomberg BNA Sept. 19 that approval from the Division of Advice in the memorandum of the disclaimer requirement was “huge” for companies.

In the memorandum, which was prepared in 2012 but not released until Sept. 19, NLRB Associate General Counsel Barry J. Kearney wrote that several other provisions in U.S. Security Associates Inc.'s employee handbook and social media policy violated the rights of employees under the National Labor Relations Act.

Policy Requires Employee Use of Disclaimer

U.S. Security's social media policy said identifying an individual as a company employee online “may create the impression of speaking on behalf of” the company. It called for employees to include “in a reasonably prominent place” in any such posting the statement: “The views expressed on this web site/blog are mine alone and do not necessarily reflect the views of my employer, U.S. Security Associates, Inc.”

The NLRB's five-member board has not yet ruled on the legality of requiring employees to include such disclaimers in their communications.

In a May 2012 guidance memorandum on social media issues under the NLRA, then-Acting General Counsel Lafe E. Solomon wrote that a similar disclaimer requirement was lawful, finding the employer had “a legitimate need for a disclaimer to protect itself from unauthorized postings made to promote its product or services” (Memorandum OM 12-59, 5/30/12).

However, in one case (Kroger Co. of Michigan, NLRB ALJ, No. 7-CA-98566 4/22/14), an administrative law judge said he was not bound or persuaded by Solomon's position and concluded that a disclaimer requirement would chill employees in the exercise of their NLRA rights, thereby violating Section 8(a)(1) of the act.

The ALJ's Kroger decision is now pending before the board.

Requirement Not Burdensome

Kearney found that U.S. Security had “a legitimate interest in protecting itself against unauthorized postings purportedly on its behalf.” Requiring an employee to attach a disclaimer to a brief text message might be unduly burdensome, Kearney said, but U.S. Security's policy, which applied only to employee postings on a “site,” was not burdensome and was therefore not unlawful.

Stevens welcomed the NLRB advice memorandum. He said disclaimer rules have been a “hot button” issue for employers, particularly in light of requirements from the Federal Trade Commission that those speaking about a company online disclose any material connections with the company.

Linking to Company Website and Other Issues

The advice memorandum reviewed other rules in U.S. Security's social media policy, including a ban on linking or otherwise referencing the company's website without permission.

According to the memorandum, that rule was unlawful under the NLRA because it would harm an employee's Section 7 rights. Section 7 protects the right of both union and nonunion employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Any work rule “that requires employees to secure permission from their employer prior to engaging in § 7 activities” is unlawful, the advice memorandum said.

It also said the company's policy against sharing “sensitive, proprietary, confidential, or financial information” and its rule against sharing material that might be “embarrassing” to another person were unlawful. The rule against sharing sensitive information might stymie attempts to discuss the terms or conditions of employment, the memorandum said, and the rule against sharing embarrassing information might bar discussions of work-related complaints.

The memorandum did find lawful U.S. Security's policy that employees behave in a “respectful manner” on social media.

To contact the reporter on this story: Michael O. Loatman in Washington at mloatman@bna.com

To contact the editor responsible for this story: Barbara Yuill at byuill@bna.com

Text of the advice memorandum is available at http://op.bna.com/dlrcases.nsf/r?Open=kerl-9p8qwe.