Earlier this month, the NLRB’s Division of Advice (“Advice”) released a memorandum that opined on a variety of CVS Health’s (the “Company’s”) policies. It considered whether those policies were “unlawfully overbroad” as they related to employees’ Section 7 rights under the NLRA. It found that some were, but most were not.
The advice memorandum is a good read for labor professionals. It provides examples of permissible employer regulations on employee conduct, including social media policies and codes of conduct. More broadly, it may further help employers navigate the uncertain waters created in the wake of the Board’s recent Boeing Co. decision. Furthermore, although Advice determined that most of the Company’s rules were permissible, its finding that several rules were unlawful was particularly noteworthy because it did so despite CVS Health’s savings clause.
In Boeing Co. (covered on this blog here), the Board set a new standard for addressing when a facially-neutral work rule, if reasonably interpreted, would potentially interfere with employees’ Section 7 rights under the NLRA. The NLRB stated that moving forward it would evaluate two things: (i) the nature and extent of the rule’s potential impact on Section 7 rights, and (ii) legitimate business justifications associated with the rule(s). Using this analysis, the NLRB created several different categories of rules: those that are lawful, those that warrant individualized scrutiny, and those that are patently unlawful to maintain.
Applying this framework, Advice concluded that two policies were unlawful. As previously mentioned, this was despite a savings clause in the Company’s social media policy that claimed that it “is not intended to interfere with any rights provided by the National Labor Relations Act.” The disclaimer also provided that the policy is not “meant to limit your legal right to use social media to speak about…union-related topics or activities with others inside or outside the Company….” Interestingly, Advice did not cite the NLRB’s 2014 ruling (which this blog previously discussed here) that such savings clauses “may, in certain circumstances, clarify the scope of an otherwise unambiguous and unlawful rule.” Advice instead cited NLRB rulings from 1994 and 2007 holding that particular savings clauses did not cure employers’ otherwise overbroad prohibitions on protected activity.
One of the policies Advice determined was unlawful required the Company employees to identify themselves by their real name and title or role if they discussed their work, the Company, colleagues, or products in personal social media interactions. Advice analogized this to its previous stance that requiring employees to self-identify in order to participate in collective action would impose a significant burden on Section 7 rights. Although the Company had a legitimate interest in ensuring that readers know employees’ postings were not made on behalf of the Company, Advice found that the rule that required employees to clearly state they were not speaking on the Company’s behalf sufficiently protected this interest without requiring employees to self-identify.
The other policy viewed as unlawful purported to prohibit employees from disclosing “protected health information, personally identifiable information, and employee information.” Advice conceded that employers have legitimate business interests in keeping customers’ and employees’ personal and medical information confidential. However, it found that the Company’s failure to define “employee information” caused this provision to be overbroad and therefore unlawful. Employees could reasonably read this to include their contact information and other non-confidential, employment-related information. In such an event, this could “significantly restrict employees from engaging in core Section 7 activities.”
While two of the provisions of the policy did not fare well, Advice ultimately opined that the majority of the Company’s rules were permissible under the Boeing standard. Several were deemed lawful with very little discussion, including a rule that stated that employees 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. Advice also reiterated the NLRB’s previous stances allowing policies that prohibited employees from posting discriminatory, disrespectful, or unlawful comments and allowing policies that prohibited photography in the workplace.
Of particular interest to employers was Advice’s opinion that it was permissible to require employees to post certain disclaimers on their social media accounts if they were speaking about the Company in any way. This included requiring all employees who maintain a Twitter account to include a variant of “all thoughts my own” at the end of their Twitter bios, and requiring employees to post longer disclaimers on websites without character limits.
For the labor professional, the advice memorandum is a helpful illustration of how the NLRB’s “prosecutor,” the General Counsel, will apply Boeing to employee handbooks, manuals, and personnel policies. That approach will include a deep dive into specific provisions to determine their impact on employees’ Section 7 rights—even going clause-by-clause.
Another significant piece of this advice memorandum is its view on the disclaimer that the Company used. Particularly during the Obama NLRB years, many employers considered the type of language the Company used in its social media policy. Advice did not give effect to that language here, making the drafting challenges this area of the law poses all the more difficult.