The NLRB general counsel’s office added to the growing body of guidance employers can use to craft legally sound social media policies with a recent advice memo on a national pharmacy chain’s policy.
The general counsel’s office and administrative law judges have weighed in on individual companies’ rules for workers’ social media use, providing direction before the National Labor Relations Board hands down a decision creating a precedential road map.
The NLRB issued a complaint against CVS for the problematic parts of its social media policy in October 2018. The company reached a settlement agreement with the agency in March. The NLRB told CVS its current policy is in compliance with the law, a company spokesman said.
Commentary from the general counsel’s office and ALJs highlight the importance of details in social media policies and the limitations around disclaimers to fix otherwise unlawful policies, management attorneys said.
Social media has moved from the edges of the internet to the mainstream of U.S. culture over the past two decades. Nearly seven of 10 adults use
Employers with union and nonunion workforces use social media policies to tamp down online conflicts between co-workers, prevent damage to their reputations, stop publication of proprietary information, and avoid individual workers’ comments from being misattributed to the company, management lawyers said.
But such policies can come into conflict with workers’ rights to criticize their employer and communicate with one another about the terms and conditions of employment.
“Social media is like what the water cooler or the employee lunch room used to be,” said Christine O’Brien, a business law professor at Boston College who has written extensively on NLRB regulation of social media. “Employers are trying to navigate the law to prohibit as much on social media as they can.”
Changing the Framework for Workplace Policies
The NLRB handed down its first opinion on an employer’s social media policy in 2012, holding that
Board decisions on social media policies applied its legal standard from its 2004 Lutheran Heritage Village-Livonia decision, which said rules are unlawful if employees could “reasonably construe” that they’d interfere with their NLRA rights. This made it difficult for many employers to legally regulate their workers’ social media use, according to some management lawyers.
The Trump labor board upended that line of cases when it set a new framework for assessing workplace rules and handbook provisions in its December 2017 ruling in Boeing. That decision’s more employer-friendly standard weighs the potential restrictions on NLRA rights against legitimate employer justifications for the rule in question.
Social Media Clues
NLRB General Counsel
Nevertheless, the general counsel’s office has discussed how Boeing applies to different social media policies in at least five advice memos. The GC’s office prepares such memos to tell regional offices whether certain charges merit issuing complaints.
Administrative law judges have also evaluated social media policies in four cases as part of the broader process of fleshing out how many types of rules fare under the Boeing standard. Appeals are pending in some of those cases, potentially providing vehicles for the board to speak on social media policies.
But in lieu of a board decision, the advice memos and ALJ decisions give signposts about how a social media policy can survive the Boeing test.
The advice memo on CVS shows the level of specificity about what employers are prohibiting versus what they aren’t makes a difference, said Samantha Bononno, an attorney who counsels employers for Fisher & Phillips in Philadelphia.
CVS could restrict workers from posting “personal information” because they wouldn’t see that as restricting information about working conditions, particularly in light of the company citing Social Security numbers and account information as examples, according to the memo.
“The GC’s office seems to appreciate the detail,” Bononno said.
But CVS couldn’t restrict workers from posting about “employee information” in general, since it could unlawfully interfere with protected communications about employment conditions, the office said.
The GC’s office similarly approved a tire maker’s restrictions on trade secrets and confidential information on social media, in part due to the examples in the policy “that give context to the limited scope of what would be considered confidential under the rule.”
Moreover, a lack of detail could doom a social media policy. An administrative law judge ruled against a security firm’s restrictions to online discussion about “business” and “confidential information” because it didn’t give exceptions for legally protected topics like wages.
Specificity also mattered in a pair of ALJ rulings that turned on what type of communications are covered by a social media policy. One judge signed off on the U.S. Postal Service’s policy, noting that it only applies to posts made by workers in their “official capacity” to speak for their employer. A different judge rejected a packaging manufacturer’s policy requiring workers to be “respectful and professional” because it extended to private social media activity.
‘Band-Aid on a Bullet Wound’
The CVS advice memo also underscored that savings clauses or other disclaimers aren’t panaceas that can cure every deficient social media policy, said Lindsay Stone, an attorney who counsels employers for Sheppard Mullin in New York.
“If the policy is totally unlawful, then it’s a Band-Aid on a bullet wound,” Stone said.
CVS’ social media policy had an explicit disclaimer that it wouldn’t interfere with NLRA rights, yet that doesn’t make the restriction on posting about employee information lawful because typical workers might not know all of their rights under that statute, the office said.
The GC’s office likewise said a shower door manufacturer’s overbroad restriction on revealing information on social media was unlawful despite its savings clause on NLRA rights. That clause didn’t indicate that employees have the right to discuss wages or working conditions, the office said.
But savings clauses may not be useless. An administrative law judge ruled that a pawnshop chain’s social media policy was unlawfully overbroad. The company’s updated policy passed legal muster, the judge said, because it clearly stated that social media is acceptable when “permitted because of a protected legal right.”
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