NLRB: Social media policy can’t require employees to use real names online

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By: Tim McElgunn for HR Morning, Photo by Christian Wiediger on Unsplash

Time to double-check your social media policies.

The National Labor Relations Board (NLRB) has released a 2018 advice memo from its Office of General Counsel regarding “whether various Employer [CVS Health] social media rules are unlawfully overbroad“ under the National Labor Relations Act (NLRA).

The memo delivers mixed news for employers — the NLRB found that two of CVS’ social media policies did violate workers’ rights under the NLRA. But the rest of the company’s social media policies fall within the law.

So, what rights did CVS violate in its social media policies?

The two sections of CVS’ policy the Board identifies as unlawful prohibited activities protected under NLRA Section 7.

The unlawful policies, it said, impinged on workers’ rights to “discuss with each other “wages, working conditions or employment disputes,” and to “engage in concerted activities for their mutual benefit.”

Those rights were included in the NLRA to protect workers’ rights to organize and to publicize what they see as unfair, unsafe, or illegal work conditions.

Who posted this?

One of the things CVS got wrong, the board said, was trying to force employees to identify themselves by their real name any time they discussed anything about the company or its activities using social media.

But, NLRB said, “requiring employees to self-identify in order to participate in collective action would impose a significant burden on Section 7 rights.”

And the company’s restriction on undefined “employee information” on social media also broke the rules.

“While the employer has a legitimate business interest in keeping customers’ and employees’ personal and medical information confidential,” the memo says, “it has no legitimate interest in preventing employees from sharing contact information or discussing wages, working conditions or employment disputes.”

OK to ban uncivil, illegal posts

The board found no problem with CVS saying employees can’t post material that’s “discriminatory, harassing, bullying, threatening, defamatory or unlawful or any content, images or photos that they don’t have the right to use.”

The decisions, the Board said, are “consistent with the Board’s ‘duty to strike the proper balance between …  asserted business justifications and the invasion of employee rights … focusing on the perspective of employees.”

What does the memo mean for your organization?

For starters, you need to review your handbooks, Code of Conduct and other formal policy statements for any language that limits workers’ Section 7 rights and modify or get rid of it altogether.

But you can’t stop there. Other federal, state and municipal laws and regulations specifically protect workers’ rights to discuss discrimination, harassment, retaliation and safety.

And many states frown on employers trying to control workers’ (legal) off-duty activities.

This is a good time to check your policies against those, as well.

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