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April 24, 2014

National Labor Relations Board (NLRB) Advice Memorandum to Giant Foods LLC: A Giant Shock to Employers

On July 11, 2013, in response to a Freedom of Information Act request, the National Labor Relations Board (“NLRB”) released a copy of the Advice Memorandum (find it here) issued for Giant Food LLC. The Advice Memorandum, originally issued in  2012, concludes that portions of Giant Food LLC’s social media policy violates the National Labor Relations Act (“NLRA”).

The NLRB has struggled over recent years to provide guidance on employer social media policies. The constant introduction of new social media venues and capabilities, along with occasional contradictory court rulings, only add to the confusion. Under Section 7 of the NLRA, employees have the right to band together for mutual aid and protection. Policies that are overbroad or vague are being struck down by the NLRB at a steady rate for fear that such policies will chill employee rights.

Giant Foods LLC social media guidelines stated, in relevant part:

…You have an obligation to protect confidential, non-public information to which you have access in the course of your work. Do not disclose, either externally or to any unauthorized Associate any confidential information about the Company or any related companies including Ahold USA, or about other Associates, customers, suppliers, or business partners.

Do not use any Company logo, trademark, or graphics, which are proprietary to the Company, or photographs or video of the Company’s premises, processes, operations, or products, which includes confidential information owned by the Company, unless you have received the Company’s prior written approval…

While employers have come to know that they cannot outright ban employees’ social media use and that they must be careful of how they restrict employee speech, many are stunned to learn that they are prevented from protecting confidential information, proprietary company logos, trademarks or graphics, or the filming of their own premises. To find out more about the NLRB’s reasoning for determining Giant Foods LLC’s social media policy unlawful, check back on Wednesday.

© 2014 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.

About the Author

Amy D. Cubbage, Commercial Litigation Attorney, McBrayer Law Firm
Of Counsel

Amy D. Cubbage practices litigation in the areas of complex tort and commercial litigation, including class actions, toxic torts and mass torts. She also litigates and counsels clients in the area of general constitutional and governmental law, with an emphasis on First Amendment, campaign finance, elections, and other constitutional issues, including the commerce clause, public contracts, governmental ethics, and eminent domain. She also has experience in litigating and counseling clients with respect to energy and environmental matters, including cases involving CERCLA, RCRA, OSHA, and...

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