09-11-2019
The National Labor Relations Board (NLRB) has issued an advice memorandum notifying employers that they may not require employees to self-identify when discussing their employment on social media. CVS Health’s social media rules prompted the memo. Included in CVS’s rules was the requirement that employees identify themselves by their real names when discussing CVS or their work on social media and another one restricting employees from disclosing “employee information” on social media.
The NLRB determined that the above policies impacted the employees’ rights to “discuss with each other wages, working conditions or other employment disputes” as protected under Section 7 of the National Labor Relations Act. Section 7 protects the right of employees to “engage in concerted activities for their mutual benefit.” Requiring employees to self-identify when addressing terms and conditions of their employment with one another imposed a significant burden on their right to engage in concerted activities. CVS’s legitimate interest in making sure it was clear from the postings that the employees were not speaking on behalf of CVS was already addressed by the policy’s requirement that employees include disclaimers.
The restriction on disclosing “employee information” could be read broadly to include employee contact information and other non-confidential information which could restrict the Section 7 right to engage in concerted activity. “Employee information” was not defined elsewhere in the rules and it would be hard to conduct Section 7 activity without involving some employee-related information. CVS did not have a legitimate interest in “preventing employees from sharing contact information or discussing wages, working conditions, or employment disputes.”
Other portions of CVS’s policy was lawful, including its ban on employees posting material that is “discriminatory, harassing, bullying, threatening, defamatory or unlawful or any content, images or photos that they don’t have the right to use.”