NLRB Memo Clarifies Rules for Workplace Social Media Policies

Two of CVS Health's social media policies requiring employees to disclose certain personal information ran afoul of federal labor law, according to an advice memo from the National Labor Relations Board (NLRB) general counsel's office.

The NLRB general counsel's office made the 2018 advice memo available on Aug. 15.

The retail pharmacy giant's two policies unlawfully interfered with employees' rights under Section 7 of the National Labor Relations Act (NLRA), which permits workers to engage in concerted activities for their mutual benefit and to discuss wages and working conditions.

CVS required employees to identify themselves by their real name when they discussed the company and their work on social media.

"The board has recognized that requiring employees to self-identify in order to participate in collective action would impose a significant burden on Section 7 rights," the memo said.

The company also restricted employees from disclosing "employee information" on social media. "While the employer has a legitimate business interest in keeping customers' and employees' personal and medical information confidential, it has no legitimate interest in preventing employees from sharing contact information or discussing wages, working conditions or employment disputes," the memo said.

The general counsel's office found that the rest of the company's social media policies were lawful.

We've gathered articles on this topic from SHRM Online and other trusted media outlets.

Policies Shouldn't Be Too Broad or Restrictive

Whether a workforce is unionized or not, many employers use social media policies to curb co-worker conflicts, prevent reputational damage to the company, protect proprietary information and ensure that employee comments are not mistaken for official company statements. But policies that are too broad or too restrictive might interfere with workers' right to complain about their employer and discuss their terms and conditions of employment with each other.

(Bloomberg Law)

New Balancing Test

A prior NLRB standard placed limits on employer handbook policies that could be "reasonably construed" by workers to limit their right to engage in protected concerted activity. Many policies—such as confidentiality, civility and social media policies—that weren't meant to limit employees' rights under Section 7 were still deemed unlawful even if an employer had a legitimate justification for the rule.

In December 2017, however, the NLRB replaced the "reasonably construe" standard with a new balancing test that considers the following factors with regard to a "facially neutral" handbook policy (i.e., a policy that is not worded to intentionally interfere with workers' Section 7 rights):

• The nature and extent of the potential impact on NLRA rights.
• The employer's legitimate justifications associated with the rule.

In the 2017 case, which involved Boeing Company, the board considered the legality of the company's policy restricting the use of camera-enabled devices, such as cell phones, on company property. Workers had to have a valid business need and an approved camera permit to bring recording devices to work. Boeing's policy didn't explicitly restrict employees from discussing the terms and conditions of their employment or engaging in other activities protected by the NLRA, and the policy wasn't adopted in response to NLRA-protected activities or applied to restrict such activities. 

Under its new standard, the NLRB held that Boeing's no-camera policy was lawful because, though it potentially affected the exercise of NLRA rights, the impact on workers was "comparatively slight" and outweighed by security justifications.

(SHRM Online)

[SHRM members-only HR Q&A: What is an unfair labor practice by management?]

CVS Health's Other Policies Deemed Lawful

In the advice memo, the general counsel's office reviewed CVS Health's policies under three categories of employment policies, rules and handbook provisions identified in the Boeing case:

• Category 1 includes lawful rules that either don't interfere with NLRA-protected rights or for which the possibly adverse impact on protected rights is outweighed by the employer's justifications for the rule.
• Category 2 consists of rules that should be scrutinized on a case-by-case basis as to whether they would interfere with NLRA rights, and if so, whether there is a legitimate justification for the rules.
• Category 3 covers unlawful rules that prohibit or limit NLRA-protected conduct and for which the adverse impact on workers' rights is not outweighed by the employer's justifications for the rules.

Most of the company's policies were found to be lawful, including a rule that employees shouldn't post anything discriminatory, harassing, bullying, threatening, defamatory or unlawful or post any content, images or photos that they don't have the right to use.

"The board made clear in Boeing that employees may maintain work rules requiring 'harmonious relationships' in the workplace and requiring employees to uphold basic standards of 'civility,' " the memo said.

The guidance also deemed lawful a rule requiring employees to who choose to speak on social media about the company to make it clear that they are employees and that they are not speaking on behalf of the company.

(NLRB)

What Employee Speech Is Protected in the Workplace?

Employees don't have a constitutional right to free speech at work, but employers still need to be aware of federal and state laws that do protect workers' speech in certain situations. In addition to the NLRA, federal and state employment laws protect employees who complain about harassment, discrimination, workplace safety violations and other issues. Some state laws also protect certain lawful off-duty conduct, so employers should check the laws in their states to see what is covered.

(SHRM Online)