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Can Employers Protect Their Business From Social Media ?
The latest National Labor Relations Act ruling regarding social media policies went against The Kroger Company, a well-known grocery chain. Kroger has promulgated an online social media policy containing, in part, the following elements:

1. Requiring employees to post a disclaimer whenever they identify themselves as a Kroger employee or post any work related information online.
2. Requiring complying with copyright laws and prohibiting the unauthorized use of Kroger’s intellectual property rights including its logos, trade name or products.
3. Prohibiting employees from commenting on rumors or speculation related to Kroger’s business plans.
4. Barring employees from online behavior that would be inappropriate at work and that would reflect a negative or inaccurate depiction of Kroger.

The National Labor Relations Act protects the right of employees to discuss, debate and communicate with each other regarding their workplace terms and conditions of employment. In determining whether a company policy violates the Act, the inquiry is whether the rule would reasonably tend to chill employees in the exercise of their rights.

The NLRB found that each of the employer’s provisions had a chilling effect on an employee’s rights to discuss, debate and communicate with each other regarding the terms and conditions of their employment. Furthermore, the policy provided that Kroger had the right to monitor the employee’s online activity away from work and discipline employees for that activity. The policy was simply too broad to pass muster even though there were legitimate business reasons underlying the policies. While Kroger certainly had a right to keep employees from making statements on behalf of the company (a role reserved for the company’s officers and certain appointed representatives), requiring a disclaimer anytime Kroger was mentioned was too burdensome.

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The requirement that employees obtain permission before engaging in protected activity (I believe a bit of a stretch in logic) made the prohibition against the use of company logos offensive to the Act. The prohibition on commenting on rumors might be read to prevent employees from commenting on layoffs, plant closings, new wage scales and thus violated the Act. 

Finally, the prohibition on online behavior, the NLRB reasoned, might include posts that challenge management decisions, contain protests, or discuss the company’s treatment of employees and thus the blanket prohibition violated the Act.