The Office of the General Counsel to the NLRB recently released an Advice Memorandum shedding new light on the types of social media rules that are permissible in the wake of the Board’s December 2017 ruling in The Boeing Co, 365 NLRB No. 154 (12/17/17). In that case, the Board set a new standard for evaluating the lawfulness of workplace rules under Section 7 of the NLRA. The Boeing standard weighs the importance of the employee’s exercise of their Section 7 rights against the employer’s need for discipline and productivity in the workplace.
On August 15, 2019, the NLRB released the September 2018 Advice Memorandum addressing the legality of a series of workplace rules issued by CVS Health. The Memo found all of the rules to be lawful under the NLRA, except for a requirement that employees use their real name when discussing CVS on social media and a prohibition on the disclosure of “employee information” on social media. The Memo also found that unlawful rules cannot be “saved” by a general statement that “this policy is not intended to interfere with any rights provided by the National Labor Relations Act” because employees cannot be expected to fully understand what rights are protected by that law.
The two rules that were deemed unlawful were found to be “Category Two” violations under the Boeing standard. “Category Two” rules “warrant individualized scrutiny in each case as to whether the rule, when reasonably interpreted, would prohibit or interfere with the exercise of Section 7 rights, and if so, whether any adverse impact on protected conduct is outweighed by legitimate business jusitifacations.”
In the case of the requirement that employees identify themselves when posting about CVS on social media, the Memo concluded that forcing employees to identify themselves when engaging in collective action (such as discussing wages and benefits) violated their Section 7 rights. The Memo noted that CVS could protect its business reputation by requiring that employees make clear in their posts that they are not speaking for or on behalf of CVS Health.
With regard to the restriction on the disclosure of “employee information,” the Memo found this phrase to be too broad to be permissible under Section 7. “Employee information” could reasonably be read to include employee contact information and other non-confidential employment-related information, the sharing of which is protected by the NLRA. On other hand, the Memo noted that CVS could legitimately prohibit the disclosure of customer information as well as employee personal and medical information.
The August 15, 2019 Advice Memo is a good illustration of how the current NLRB views social media policies under the NLRA. Employers looking to draft or revise their policies should take the time to read the Memo to learn the current parameters of a lawful policy.