Category Archives: Columns

NLRB’s Advice Memorandum to Giant Foods LLC: A Giant Shock to Employers, cont.

I informed readers on Monday that the NLRB recently publicly released its Advice Memorandum to Giant Foods LLC. The company’s social media policy contained provisions that prevented employees from sharing confidential or non-public information, using the company’s logo or trademarks or filming the company premises without prior approval. The NLRB found that the provision prohibiting employees from posting information that could be deemed “confidential” or “non-public” is unlawful because “non-public” is a vague term which employees could reasonably construe to include working conditions and “confidential” could reasonably be interpreted to include terms and conditions of employment. Regarding an employer’s legitimate interest in protecting his logo, trademark, or graphics, the Memorandum stated: “Although the employer has a proprietary interest in its trademarks, including its logo if trademarked, employees’ use of its name, logo, or other trademark while engaging in Section 7 activity would not infringe on that interest.” The Memorandum illustrated a scenario in which an employee posted picket signs containing the...
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NLRB’s 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...
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Who Owns Your Company’s Social Media Accounts?

Some business assets are easy to spot: a company car or fax machine, for example. Others are intangible, like a bank account or line of credit. And then there is one item that is just emerging as a recognized business asset: social media accounts. Yes, a business can “own” its social media presence. Online accounts for Facebook, Twitter, LinkedIn, and so on are valuable resources and, increasingly, businesses are struggling with determining to whom this property belongs.

What’s the Big Deal?

There is two-fold value associated with these social media accounts. First, an account page contains user-generated content that has been created specifically to promote that business’s goods or services. It has been developed, at the very least, as a means to increase awareness about a business. Some social media pages serve as a way to respond to customer complaints, release announcements, or advertise special promotions. Second, the account has followers, friends, or connections that are unique to it as a business. The accounts...
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