Two of the social media policies of a nationwide drugstore chain run afoul of federal labor law, according to a recent advice memo from the National Labor Relations Board (NLRB) general counsel’s office. But, several others passed muster.
The Board said CVS Health’s policies requiring employees to identify themselves by their real name when discussing the employer or their employment on social media, and the rule restricting employees from disclosing employee information — because it could prevent the workers from sharing contact information or discussing wages, working conditions of employment disputes on social media — are unlawful.
The policies were rejected because they interfere with employees’ rights under Section 7 of the National Labor Relations Act (NLRA), which allows workers to engage in concerted activities for their mutual benefit and to discuss wages and working conditions, the Board said.
However, the Board approved several of the company’s other social media policies, including:
- A rule that states only designated CVS Health employees are authorized to speak on behalf of the company on social media when dealing with traditional news media
- A prohibition on the use of the company’s logo
- A prohibition on CVS-branded social media accounts unless approved in advance
- A prohibition on sharing photos taken from non-public areas or meetings
- A prohibition on professional employment recommendations or testimonials for current and former employees made in a social media posting
- A ban on posts that are discriminatory, harassing, bullying, and unlawful
Many employers use social media policies to raise awareness of the organization, protect a company’s reputation and brand and to make sure that employee comments are not mistaken for approved company statements. An estimated 79% of businesses have a social media policy. But the policies have to be carefully crafted so that they don’t interfere with a worker’s legal right under federal law to discuss the terms and conditions of employment.
Social media work rules after Boeing
The NLRB’s memo provides insight into the types of social media work rules that are overbroad under federal law following the 2017 ruling in The Boeing Company.
In Boeing, the NLRB said it would use a standard based on a “facially neutral policy, rule or handbook provision that when “reasonably interpreted” would potentially interfere with the exercise of National Labor Relations Act (NLRA) rights.
The question in Boeing was the legality of the policy restricting the use of devices with cameras, such as cell phones, on company property. If workers wanted to bring a device that could record to work, they had to show a valid business need and obtain a “camera permit.” 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.
Employers may not require employees to use their names on social media
CVS Health had a rule that colleagues who mentioned or discussed their work, CVS Health, colleagues, CVS Health products or services in personal social media interactions had to identify themselves by their real name and, where relevant, title or role.
“Personal opinions should be stated as such,” the CVS rule states. “CVS Health colleagues who choose to mention or discuss their work, CVS Health, colleagues, or CVS Health products or services in personal social media interactions must identify themselves by their real name and, where relevant, title or role. You must also identify that you work for CVS Health and make clear in your postings that you are not speaking for or on behalf of CVS Health.”
The NLRB said the rule’s requirement that employees identify themselves by name if they mention the employer or discuss their work on social media is unlawful.
Many employers use social media policies to raise awareness of the organization, protect a company’s reputation and brand and to make sure that employee comments are not mistaken for approved company statements.
“This would require employees to self-identify whenever discussing terms and conditions of employment with one another or with third parties such as labor organizations,” the NLRB wrote. “The Board has recognized that requiring employees to self-identify in order to participate in [a] collective action would impose a significant burden on Section 7 rights. And, while the Employer has a legitimate interest in ensuring that readers know that employees’ social media postings are not being made on its behalf, the Employer maintains other facially lawful rules (including the last sentence of the above provisions) that protect this interest.”
However, the Board noted that CVS could protect its business interests by requiring employees to add disclaimers in their posts that they are not speaking for or on behalf of CVS Health.
Restriction on undefined ‘employee information’ was too broad
The Board said the company’s restriction on “employee information” on social media was overbroad.
CVS Health’s rule stated that “[o]ur Code of Conduct makes clear the importance of protecting the privacy and security of PHI [protected health information], PII [personally identifiable information], and employee information. It is not permissible to disclose this information through social media or other online communications.”
Employee information could be read by employees to mean contact information and other non-confidential employment-related information, in which case, forbidding its disclosure would “significantly restrict employees from engaging in Section 7 activities,” the NLRB said, also explaining that there is no “limiting context or language” that makes clear that employee information does not include employee contact information or terms and conditions of employment.
“While the employer has a legitimate business interest in keeping customers’ and employees’ personal and medical information confidential,” the Board says, “it has no legitimate interest in preventing employees from sharing contact information or discussing wages, working conditions, or employment disputes.”
Ok to ban harassing, discriminatory posts
The company’s ban on posts that are “discriminatory, harassing, bullying, threatening, defamatory or unlawful” was upheld. As well as the admonition that employees should not post “content, images or photos that you 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 Board said in the memo. The NLRB noted that “any adverse effect of such rules on Section 7 rights would be comparatively slight because a broad range of NLRA-protected activities are consistent with basic standards of harmony and civility.”
OK to ban sharing photos from non-public areas or internal meetings
The Board said the company’s ban on sharing photos taken in break rooms, stock rooms, conference rooms, and any other area that is not open to the public was lawful.
“Do not take or share photos from non-public areas or internal meetings. Photos taken in break rooms, stock rooms, conference rooms, and any other area that is not open to the public should not be shared on social media for any reason. Company confidential information, like staffing, inventory, company goals/strategies and patient information could be compromised. Any photos of company presentations/slides, documents, notices, or computer screens of any kind are also not allowed on any social media platforms or channels.”
Because rules forbidding photography at the workplace are lawful rules, it follows that a rule prohibiting employees from posting such photographs on social media is lawful, the Board said, adding that, when read viewed in context with the company’s language regarding confidential information and a clause at the beginning of the social media policy that nothing in the policy was meant to limit an employee’s legal right to use social media to speak about their political or religious views, lifestyle and personal issues, working conditions, wages or union-related topics or activities with others inside of outside the company.
OK to ban employee recommendations
The Board approved the ban on employee recommendations. “Leave employee recommendations to the formal process. Professional employment recommendations, references, or testimonials regarding current and former employees should not be made in a social media posting. These are matters to be handled by the HR Department.”
The rule is similar to the rule ensuring that only authorized employees may speak on the employer’s behalf and employees would understand that this rule — which mentions professional employment recommendations, references — is intended to protect the employer’s legitimate managerial interests concerning references for a current or former employee, the Board said.