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NLRB Clarifies Social Media Rules

  • November 01, 2019 11:31 AM
    Message # 8087034

    Rules for social media policies have long made employers feel like they are walking on egg shells.   Thankfully, the National Labor Relations Board (“NLRB”) recently provided some clarity in the CVS Health Case, No. 31-CA-210099. 

    The NLRB found the following policies lawful:

    • 1.       Consistent with the Company’s approach to interacting with the traditional news media, only designated CVS Health employees are authorized to speak on behalf of the Company in social media.  Colleagues who choose to speak on social media about the Company in any way must make it clear that they are a CVS Health employee, but not speaking on behalf of the Company or as an official Company Representative. 

    The NLRB found the rule lawful because it has no real impact on Section 7 rights and employers have a significant interest in ensuring only authorized employees speak for the company.  Section 7 of the National Labor Relations Act (the Act) guarantees employees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection," as well as the right "to refrain from any or all such activities." This is good news for employers. 

    • 2.      All CVS-branded social media accounts (using “CVS,” “CVS Health” or any CVS business unit, department or product name as part of the account name or URL and/or using the CVS logo in any way) must be approved in advance. 

    The NLRB found while this rule may impact some protected activity like posting pictures of picket signs or leaflets with the Employer’s logo, usually employees will understand this type of rule as protecting the employer’s intellectual property from commercial and other non-Section 7 related use. 

    The NLRB found the following policies unlawful:

    • 1.       Distinguish personal social media and work social media.  Personal opinions should be stated as such.  CVS Health colleagues who choose to mention or discuss their work, CVS Health, colleagues, or CVS Health products or services in personal 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 found requiring employees to identify themselves by name is facially unlawful.  The NLRB reasoned this would require employees to self-identify whenever discussing terms and conditions of employment with one another or third parties such as labor organizations.  The Board has long recognized requiring employees to self-identify in order to participate in collective action would impose a significant burden on Section 7 rights.

    • 2.      Protect personal and confidential information.  Our 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.

    The NLRB found this rule unlawful because the restriction on disclosing “employee information” was too broad.  This would reasonably include employee contact information and other non-confidential employment related information which would significantly restrict Section 7 rights.  The NLRB noted clarifying language would be needed to correct the rule such as “employee information does not include employee contact information or terms and conditions of employment.”

    Employers should review their social media policies and revise them to comply with this new guidance.  If your policy was written to comply with the law as interpreted under the Obama Administration, it is likely much more restrictive than the NLRB now will allow.  We will keep you posted with any further developments. 

    Robert G. Brody is the Founder and Managing Member of Brody and Associates, LLC, a management-side Labor, Employment, and Benefits law firm in Westport, CT.  Co-author, Katherine M. Bogard is Senior Counsel at the Firm.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.  For more information about Brody and Associates, LLC please visit www.brodyandassociates.com


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