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On-line Speech is No Different Than Traditional Forms of Public Communication

– Developing Law Around Social Media and the Workplace

Over the last year, we have written, blogged and linked many of the developing decisions surrounding social media in the workplace. Check out: Know Your Exposure – Using Social Networking Sites in Hiring; A Legal Guide to Social Media in the Workplace; Perils of Social Media in Litigation; Perils of Social Media – Deleting Evidence; and Ownership of Company Social Media Accounts among other fascinating looks at what’s happening in this area of the law.

On April 22, 2014, a Flint Michigan Administrative Law Judge added a fresh nuance. At issue in The Kroger Co. of Michigan and Anita Granger case was whether an employer can maintain an online communication policy requiring employees to post required caveats when discussing work on personal social sites. Kroger’s policy required its employees, when identifying themselves as an associate of the Company, to publish the following caveat along with any personal media posts discussing work matters:

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.

Kroger’s Policy was scrutinized under the National Labor Relations Act. Section 7 of the Act gives employees 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…”   A core activity of Section 7 is the right of employees to discuss, debate and communicate with each other regarding their workplace terms and conditions.     Through this activity, the Act recognizes the importance of freedom of communication to the free exercise of organization rights. In determining whether a work rule violates the act under Section 8, therefore, the inquiry is whether the rule would tend to chill employees in the exercise of their Section 7 rights.

Analyzing the policy, the ALJ first acknowledged Kroger’s (and all employers’) legitimate interest in stopping unauthorized employees from speaking on behalf of the company and from being perceived to have spoken on behalf of the company. The opinion also conceded that most, if not all, communications covered by the policy would never reasonably be confused for employer-sanctioned speech. Thus, the ultimate issue was whether requiring a disclaimer for every positing by an individual identified as a Kroger employee that conveyed “work-related” information unduly burdened legitimate communication to an extent that would likely chill employees willingness to engage in it.

The Court found that Kroger’s rule was “manifestly broader than its legitimate interest.” First, the policy could reasonably be read to apply to any communication posted privately, to a group or publically related to any workplace condition.   Next, it was difficult, if not impossible, to monitor all communications and, therefore, apply the rule consistently. Finally, the rule acted as “an implicit reminder of the involvement and insertion of the employer into every work-related on-line comment or discussion engaged in by the employee.”

Interestingly, as we discussed in a prior article, The Defensive Use of Social Media, the Court recognized that on line communication is now mainstream public communication rather than a rare, formal, non-personal form of communication. As such, this mainstream form of communication, and proposed limits to it, must be looked at in the same way as other public communications :

An ever increasing amount of social, political, and personal communication, increasingly by people of all ages, takes place online. This is no less true for work-related and Section 7 communication than it is for every other type of communication between people. Surely there are very few workplaces in the country where a significant amount of whatever Section 7-protected activity that exists, is not happening online between employees. Certainly, the online world is a locus of employee union (and anti-union) campaigning. In this regard, employer prohibitions, restrictions, and burdens on Section 7 online speech can be no more limiting than that of traditional written and oral speech. A rule that required Kroger employees, who are identified as such, to mouth a disclaimer whenever they conversed with others about “work-related information,” while standing on a street corner, picket line, in church, in a union meeting, or in their home, would never—ever—withstand scrutiny. As with traditional, in-person communication, this required online disclaimer has no significant legitimate justification and is, indeed, burdensome to the point that it would have a tendency to chill legitimate Section 7 speech.

Kroger’s policy was stricken and employers now have a little more guidance regarding sanctioned and prohibited parameters of their social communications policies.

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