Employers May Not Require Employees to Use Their Real Names on Social Media, NLRB Says
Author: Robert S. Teachout, XpertHR Legal Editor
August 30, 2019
The National Labor Relations Board (NLRB) Office of General Counsel has released an advice memo providing insight into the types of social media work rules that are unlawfully overbroad following its 2017 ruling in The Boeing Company. The CVS Health advice memo found that all the social media rules were lawful except for a requirement that employees use their real name when discussing the company on social media and a prohibition on disclosing "employee information" on social media.
In Boeing, the Board said it would use a standard based on whether a facially neutral policy, rule or handbook provision, when "reasonably interpreted," would potentially interfere with the exercise of National Labor Relations Act (NLRA) rights. Later, the NLRB General Counsel issued Memorandum GC-18-02 explaining how the board would determine whether a facially neutral rule could reasonably be interpreted to interfere with the exercise of NLRA rights and balance a rule's impact on NLRA rights and the lawful business justifications for its implementation.
In the case of the rule requiring employees to identify themselves when posting about CVS on social media, the Memo held that that forcing employees to identify themselves would impose a significant burden on their Section 7 rights under the NLRA when engaging in collective action such as discussing wages and benefits. However, the memo noted that CVS could protect its business interests by requiring employees to make clear disclaimers in their posts that they are not speaking for or on behalf of CVS Health.
The memo also found that use of the term employee information with regard to the restrictions on disclosing information to be too broad to be permissible under Section 7. "Employee information" could reasonably be read to include employee contact information and other non-confidential employment-related information, the sharing of which is protected by the NLRA. CVS could legitimately prohibit disclosing employees protected health information and personal information, as well as customer information.
"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."