NLRB Issues Advice Memo on Social Media Rules

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The National Labor Relations Board released yet another batch of Advice Memoranda this month. Advice Memoranda contain the recommendations of the Office of General Counsel to the Board on specific issues. Most of the memos were either prepared years ago or are of limited interest. One more recent memo, however, offers guidance on social media rules – a topic of perpetual interest to employers, both union and non-union alike.

In CVS Health (Sept. 5, 2018), the OGC applied the Boeing analysis to several handbook rules and policies. As the Board set forth in the 2017 case, The Boeing Company rules (which we discussed in detail in a December 2017 E-lert) 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 Code of Conduct, the Handbook, and the Social Media Policy, as follows:

Policies found to be lawful:

  • A restriction on who can speak on an employer’s behalf in social media. (Category 1)
  • A restriction on the use of the company logo on social media accounts or the use of the company name as part of a social media account name or URL. (Category 1)
  • A civility rule stating in relevant part: “Do not be disrespectful or break the law: You should not post anything discriminatory, harassing, bullying, threatening, defamatory, or unlawful.” (Category 1)
  • A prohibition on disclosing “personal information” about colleagues and others, as it is explicitly placed in the context of Social Security numbers and account information as examples of “personal information.” (Category 1)
  • A prohibition taking photos from non-public areas or internal meetings and sharing them on social media. (Category 1)
  • A requirement to keep communications and information from internal communications programs confidential. (Category 2) While the communications may cover matters related to the terms and conditions of employment, employers are permitted to keep their presentations about such matters confidential. In addition, a savings clause specifically clarifies that the rule does not limit employees’ legal right to use social media to speak about “working conditions, wages, or union-related topics or activities with others inside or outside the Company, or to restrict any other legal rights.”
  • A requirement to use disclaimers on personal social media accounts if speaking about the company, stating, e.g., “All thoughts my own” for word-restricted platforms or, more formally, “The opinion expressed in this post and in any corresponding comments are the personal opinions of the original authors, not those of [Company].” (Category 1)
  • A requirement to leave “professional employee recommendations, references or testimonials” to the formal process. The use of “professional” is intended to protect the company’s legitimate managerial interests regarding references for employees, and is akin to the lawful rule that only authorized employees may speak on the employer’s behalf. (Category 1)
  • A statement that social media is not the appropriate venue to voice complaints about the company that could be resolved more constructively through appropriate channels consistent with the company’s commitment to a diverse and safe workplace. The policy also permits employees to use social media to voice complaints or criticisms, but not in a discriminatory, harassing, defamatory, or threatening way. (Category 2)

Policies found to be unlawful:

  • Requirements for employees to identify themselves by name if they mention the company or discuss their work on social media. (Category 2)
  • Prohibitions on disclosing “employee information,” which could be reasonably read to include employee contact information and other non-confidential employment-related information. (Category 2)

Notably, the OGC found a generic “savings clause,” stating that the rule was not intended to interfere with any rights provided by the National Labor Relations Act, to be ineffective, as employees “do not necessarily know the full panoply of their rights under the NLRA.” On the other hand, the more specific savings clause, described above, was effective.