Judge Finds Social Media Disclaimers For Employees Are Unlawful

By Eric B. Meyer

How many of you have social media policies, which contain a provision that reads something like this:

If you identify yourself as an associate of the Company and publish any work-related information online, you must use this disclaimer: ‘The postings on this site are my own and don’t necessarily represent the positions, strategies or opinions of the Company.‘ “

Yeah, I write these disclaimers all the time for clients. Apparently, they’re unlawful.

Or so says, an administrative law judge in this recent opinion.

“Unduly burdensome” to the employee

In what the administrative law judge considered to be a matter of first impression, he found that the provision above was overly broad and discouraged the rights of employees to discuss the terms and conditions of employment:

The requirement that a disclaimer be posted by the employee every time he or she speaks on work related issues and is identifiable as an employee of the employer, is unduly burdensome, well beyond any legitimate interest of the employer, and will have a tendency to chill legitimate Section 7 speech by the burden it brings to it. The Respondent’s rule impinges on Section 7 activity beyond any reasonable accommodation with any legitimate concern.”

A matter of first impression, huh?

I seem to recall the National Labor Relations Board‘s own General Counsel blessing a social media — heck, it was WalMart’s social media policy — which had the same darn disclaimer language! You can view WalMart’s policy here (p. 23, last bullet).

But, the judge found this General Counsel guidance to be unpersuasive. [In your face, Lafe Solomon!]

Is this really a non-issue?

The administrative law judge reasoned that requiring this disclaimer for every online communication by an employee which concerns work-related information and as to which the employee is identifiable as an employee for the employer would be burdensome and overreaching.

(Oh, I beg to differ. This doesn’t seem overly broad or burdensome to me.)

On many social media sites (e.g., Instagram, Pinterest, Twitter), an individual is unlikely to identify his/her employer. So, it’s a non-issue. And, on other social networking platforms like Facebook or a work-related blog, where the individual may identify himself as an employee, is it so hard to put the required disclaimer somewhere on the site?

Even if this particular disclaimer is overreaching, surely, one could appreciate how a company wants to ensure that individuals reading online employee-speech about the company, don’t mistake those words for the position of the company.

We’ll see what happens if this case goes to the full National Labor Relations Board on appeal.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.