NLRB Division of Advice Addresses Lawfulness of Social Media and Solicitation and Distribution Policies | Practical Law

NLRB Division of Advice Addresses Lawfulness of Social Media and Solicitation and Distribution Policies | Practical Law

The Office of the General Counsel of the National Labor Relations Board (NLRB) has released two advice memoranda addressing whether employer social media and solicitation and distribution policies are unlawfully overbroad.

NLRB Division of Advice Addresses Lawfulness of Social Media and Solicitation and Distribution Policies

by Practical Law Labor & Employment
Law stated as of 20 Aug 2019 • USA (National/Federal)
The Office of the General Counsel of the National Labor Relations Board (NLRB) has released two advice memoranda addressing whether employer social media and solicitation and distribution policies are unlawfully overbroad.
On August 15, 2019, the Division of Advice of the NLRB's Office of the General Counsel (Advice) released a pair of advice memoranda, dated August 10, 2018 and September 5, 2018, evaluating the legality of various employer policies under the Board's decision in The Boeing Company (365 N.L.R.B. No. 154 (Dec. 14, 2017)) and other applicable Board law.
In the August 10 memorandum (Fresenius Medical Center), Advice:
  • Noted that the Boeing standard does not apply to solicitation and distribution rules.
  • Concluded that the employer's "Solicitation and Distribution in the Workplace" policy was unlawfully overbroad regarding its:
    • off-duty access provision that restricted off-duty employees from entering the facility only for solicitation and distribution in violation of the Tri-County test (Tri-County Medical Center, 222 N.L.R.B. 1089 (1976));
    • definition of immediate patient care areas under current Board law because it included adjacent corridors, sitting/waiting rooms, and nurses stations without demonstrating that this is necessary to avoid disruption of patients or patient care (however, the General Counsel noted its view that the Board should revisit and expand the definition of "immediate patient care" to include sitting/waiting rooms and nurses station); and
    • restriction on email use for solicitation and distribution because it was not limited to working time and could be understood to encompass Section 7-protected emails.
In the September 5, 2018 memorandum (CVS Health), Advice concluded that the employer's rules that were unlawfully overbroad under Boeing were:
  • The rules requiring employees to identify themselves by their real name when discussing the employer or their work on social media.
  • The rules restricting employees from disclosing undefined "employee information" on social media.
Advice memoranda are not binding precedent from the NLRB. However, advice memoranda provide insights concerning:
  • Which kinds of unfair labor practice (ULP) allegations the NLRB General Counsel is likely to prosecute.
  • What liability theories the NLRB General Counsel is developing and pursuing.
  • How the NLRB General Counsel is extending, minimizing, combining, or parsing precedent to support prosecuting or dismissing those types of allegations and liability theories.