Another Month, Another (Unhelpful) NLRB Advice Memo on Social Media Rules

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In the latest batch of Advice Memoranda from the National Labor Relations Board, the Office of General Counsel (OGC) offers further guidance to employers, both unionized and non-union. Advice Memoranda contain the recommendations of the OGC to the Board on specific issues. While several are years old and of limited interest, Comprehensive Healthcare Management Services, LLC, which was prepared in 2018, provides some rather confusing direction on social media rules.

As the Board set forth in the 2017 case, The Boeing Company (which we discussed in detail in a December 2017 E-lert), workplace rules are divided into three categories, depending on whether they (1) are lawful, (2) warrant individualized scrutiny, or (3) are unlawful. In the current memo, the OGC examined provisions contained in the Social Media Policy. Two provisions were found to have a disproportionately adverse impact on employees’ rights under the National Labor Relations Act to communicate information regarding the terms and conditions of employment, while several others were found lawful.

What is particularly confusing is that the provisions at issue were taken verbatim from a social media policy that was found to be lawful in its entirety by the then-Acting General Counsel of the Board back in 2012, in a Division of Operations-Management Memo (OM 12-59). Unsurprisingly, the employer community has since adopted this social media policy as the model. Nonetheless, the current OGC found the following provisions to be unlawful under Boeing:

  • A directive to “Make sure you are always honest and accurate when posting information or news.” The OGC observed that “employees have the right to make a wide variety of statements in the context of a labor dispute, including inaccurate statements, as long as those statements do not constitute malicious defamation.”
  • A provision stating “Maintain the confidentiality of [employer] private or confidential information. Do not post internal reports, policies, procedures or other internal business related confidential communications.” According to the OGC, this reference to “policies” and “procedures” would include information about terms and conditions of employment.

Oddly, there appears to be no recognition or acknowledgement in the current advice memo of the existence of the prior Operations Memo or the fact that the current memo represents a shift in position on these provisions above. Consequently, it is unclear whether this memo, which has not actually been addressed by the Board itself, has any real impact on how social media policies should be assessed.