In August 2019, the National Labor Relations Board published an advice memorandum about social media policies. The September 5, 2018 memo addressed particular provisions of written policies of CVS, the retail drug store chain. Although aimed at one employer’s specific policies, the advice memo provides helpful guidance for other companies. But, it doesn’t create absolute certainty on all employee social media issues.

Legal Backdrop – NLRA

The National Labor Relations Board (NLRB) enforces the National Labor Relations Act (NLRA). The NLRA allows private-sector employees to form unions. It also gives employees the right to engage in other activities for their mutual protection. Fundamentally, that means protection from their employers. This includes rights to communicate regarding terms and conditions of employment–things like wages, hours, and work conditions. These are known as “Section 7” rights, referring to the applicable NLRA provision.

“Social media” emerged as a technological and cultural phenomenon in the last part of the 2000s decade. Employers soon wondered how the new communication methods would affect the workplace. They started drafting policies and guidelines for employees–what they could or (more often) couldn’t do online.

Perhaps surprisingly, the NLRB stepped in and started scrutinizing social media policies. The agency began finding portions of the policies unlawful under the NLRA. It said that the employers’ new prohibitions would arguably deter employees from engaging in communications about work that they had a right to participate in under federal law.

After a political shift in Washington following the 2016 election, the NLRB started to change its tune. In a December 2017 decision involving The Boeing Company, the NLRB announced a less restrictive view on employer policies, including social media parameters.

Current Social Media Policy Standard

The 2017 Boeing case established a new test for judging whether employee policies violate the NLRA.

If a rule is “facially-neutral,” but could be read to violate the NLRA, the NLRB will weigh two considerations:

1. The nature and extent of the potential impact on Section 7 rights; and
2. Legitimate business justifications associated with the rule’s requirements.

The NLRB observed that this standard creates three possible categories of such rules.

Category 1 Rules

These are rules that are lawful for employers to maintain as a general matter, either because:

(a) The rule does not prohibit or interfere with the exercise of Section 7 rights; or

(b) Even though the rule has a reasonable tendency to interfere with Section 7 rights, the potential adverse impact on those protected rights is outweighed by employer justifications associated with the rule.

This includes rules requiring “harmonious relationships” and “civility” in the workplace.

Category 2 Rules

These are rules that require individualized scrutiny in the specific case at hand. The NLRB will look at relevant circumstances to balance the impact on Section 7 rights against any legitimate business justifications.

Category 3 Rules

These are unlawful rules where the Section 7 implications cannot be justified by business concerns.

Prohibitions on employees discussing wages and benefits with each other fall into this category.

Lawful Social Media Rules

Here are some of the types of rules that the NLRB’s Division of Advice deemed acceptable in CVS’s situation:

• Employees who speak on social media about the company “in any way” must make it clear they are a company employee but are not speaking on behalf of the company.
• Use of any company or brand name or logo as part of a social media account requires prior company approval.
• Employees may not post anything “discriminatory, harassing, bullying, threatening, defamatory, or unlawful.”
• Taking or sharing photos from non-public areas or internal meetings is prohibited.
• Employees may not post “content, images or photos” that they don’t “have the right to use.”
• Internal communications and information must be kept confidential.
• Employees must use a disclaimer if they speak about the company on social media.
• Employees cannot give professional recommendations or references regarding current or former company employees through social media posts.

In the past, the NLRB likely would have found many of these rules to violate the NLRA. While the Division of Advice’s “blessing” of these rules is a good sign for employers, the memo does not guarantee how the NLRB would ultimately rule on any particular rules. The specific words and context of social media policies can change the analysis. As can the composition of the NLRB Board.

Unlawful Social Media Rules

The NLRB advice memo ruled that at least portions of the following types of rules were unlawful as used by CVS:

• Employees may not disclose “employee information” through social media.
• Employees who mention their work for the company on social media must disclose their real name and job title.

The Division of Advice stated that the rule about employee information could be problematic because employers cannot prohibit employees from sharing “employee contact information and other non-confidential employment-related information.”

It indicated that the rule requiring employees to self-identify goes against NLRB precedent. Traditionally, employees have the right to engage in collective action without identifying themselves. But, the Division of Advice noted, the employer can otherwise avoid some of its legitimate concerns by requiring even unidentified employees to acknowledge their employment status and disclaim that they are not speaking on behalf of the company.

The full NLRB advice memo regarding the CVS social media policies is available here.

Reviewing Your Social Media Policy

The pendulum has definitely swung back in employers’ favor on this subject. Accordingly, this might be the right time to review your social media policies, assuming your company already has one. If you don’t have one, but want one, then these latest developments can help guide you. But, in either case, most employers shouldn’t rush to impose the most restrictive policy possible without careful consideration of the implications.

First, you should evaluate what employee social media issues your company has had in the past. If none, then your existing policy (or even the absence of a policy) might be sending a sufficient message.

Second, does the nature of your business generate specific impetus for different social media policies than what you currently have? Relevant factors include the nature of your workforce, the prevalence of highly confidential information, the use of social media for conducting positive business activities, etc.

Third, how will your employees respond? Most people by now are accustomed to using social media in their daily lives. Any efforts to curtail their activities could make employees nervous, if not angry. So make sure the justification for greater restrictions justifies the potential backlash.

Finally, if you do want to revise your social media policies, seek legal advice. You can’t simply rely on what the NLRB’s Division of Advice said was okay for CVS. This is an area where every word matters. And, even then, some risk remains. You should have a clear understanding of these risks and attempt to mitigate them in advance.

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