Posted by Melissa Fleischer, Esq. on Apr 29th 2014

Social media policy drafting has been leaving employment attorneys perplexed lately. Just when we lawyers believed we understood what was now being required by the NLRB and what was still prohibited, a recent decision by an ALJ throws a wrench into the mix and confuses everyone even more than we previously had been.

The background of this issue is important to a true understanding of the problems the NLRB has caused for us employment attorneys and our employer clients. Just as social media started getting big and employment attorneys had figured out what should and what should not be in an employer’s social media policy, in walks the NLRB. I believe, based on the lessening of the role of labor unions in workplaces today, the NLRB realized that just like the Post Office, the NLRB may soon be obsolete. Thus, in an attempt to “reinvent” themselves and become relevant again, the NLRB starts going after non-unionized and unionized employers alleging that either the employer’s actions in firing an employee for what they said or did on Facebook or other social media was unlawful or that merely the provisions of the employer’s social media policy was unlawful.

The NLRB started with a case in which a Connecticut ambulance company terminated an employee for what she posted on her Facebook page from her own computer on her own time. The NLRB alleged that both the employer’s actions as well as the provisions of its social media policy violated the National Labor Relations Act (“NLRA”). This case commenced a journey down the slippery slope in which the NLRB commenced so many cases alleging violations of the NLRA based on social media policies that the General Counsel of the NLRB had to issue three separate memoranda to explain each decision. This threw the drafting of social media policies on its head and left many employment attorneys scrambling to ensure that their social media drafts would not be held to violate the NLRA.

Just when we believed that we understood what was prohibited and what was allowed, the ALJ in this recent case, The Kroger Co. of Michigan and Anita Granger (Case No. 07-CA-098566),  throws a wrench into it and holds that in fact a provision in a social media policy that was previously “blessed” as lawful by the NLRB and its General Counsel was now all of a sudden unlawful because it had too much of a “chilling effect” on the employees’ Section 7 rights.

So what happened in this case? The company had a social media policy, similar to the ones that most employers have, that contained a provision requiring an employee who posts work-related e-mails on social media to have a disclaimer on each post that states that the posts they make are based on their own beliefs and in no way represent the views of their employer. This social media policy had virtually the same exact language in this provision as the social media policy that the General Counsel had discussed in his recent memo as being “lawful” and not in violation of the NLRA.

This case has caused quite an uproar with us employment attorneys who now are left to guess what we are still allowed to prohibit in any social media policy we draft and what we may not prohibit. One thing is for sure though. Employer’s social media policies have been changed drastically based upon the recent assertive actions of the NLRB and for employers to be best protected, they should consult with their HR Consultants regarding reviewing their social media policies to ensure that they still will pass muster with the NLRB.