Continuing a recent trend, the National Labor Relations Board has gone on the offensive attacking employers’ policies concerning electronic communications and social media. Recently, the NLRB challenged a number of policies concerning electronic communications put in place by a group of Pittsburgh hospitals and clinics.
UPMC operates 20 hospitals and clinics in Pennsylvania, and its Pittsburgh facilities employ more than 10,000 employees. The company distributes personnel policies to all employees through its intranet. The NLRB specifically challenged three UPMC electronic communication and social media policies:
- A no-solicitation policy;
- An email and messaging policy; and
- An acceptable use of information technology policy.
Section 7 of the National Labor Relations Act protects employees’ right to engage in various forms of “concerted activity.” Concerted activity includes the right of employees to openly discuss and share views about their employer and workplace. In today’s world and workplace, that communication may be conveyed electronically. The ability of employees to communicate about their employer and workplace is not without its limits. In many instances, an employer can ban the use of its equipment, including email and electronic resources. When reviewing electronic communication and social media policies, the NLRB focuses on two issues:
- Is the employer’s policy overly broad and/or ambiguous? In other words, does a policy appear to ban some activity that is protected by Section 7, or is it unclear in a way that would tend to “chill” employees from exercising their Section 7 rights?
- Does the policy discriminate by permitting some communication, but prohibiting similar communication that involves Section 7 rights?
The NLRB will also investigate whether email or social media policies were specifically adopted by an employer to impede a union or union organizing activities at work.
In the case of UPMC, there was no evidence that the employer had issued the policies in response to some sort of union organizing efforts. Instead, the Labor Board attacked UPMC’s policies as being overly broad and ambiguous in a way that could discourage employees from exercising their right to communicate about their jobs. It was irrelevant whether UPMC intended to discourage employees from exercising Section 7 rights, if the overly broad language and ambiguity had that effect. The NLRB’s charge against UPMC was heard by an administrative law judge, who made the following rulings on April 19, 2013:
UPMC’s no-solicitation policy prohibited the use of emails for all non-work solicitation. There was no accusation employees who engaged in solicitation on behalf of union organizations were disciplined, while other employee solicitations received no discipline. Because there was no claim of discriminatory enforcement, the administrative Law Judge found UPMC’s no-solicitation policy was lawful.
Electronic Mail and Messaging Policy
The electronic mail and messaging policy presented a different set of issues. This policy did not absolutely prohibit non-work use or solicitation through the email system. It only banned electronic communication use by employees that was “disruptive,” “offensive” or “harmful to morale.” In terms of solicitation, the electronic mail and messaging policy did not prohibit employees from soliciting on behalf of groups and organizations, so long as the organizations were “sanctioned by UPMC executive management.” The administrative law judge found that this policy was vague and overly broad because the employees could not determine with any certainty what type of communications were prohibited. Also, UPMC’s policy discriminated by permitting solicitation on behalf of employer-endorsed groups. For that reason, the administrative law judge found the policy could have the effect of preventing employees from exercising their Section 7 rights and was overly broad, ambiguous, discriminatory and in violation of the NLRA.
Acceptable Use of Information Technology Policy
UPMC’s acceptable use policy addressed an employee’s use of company electronic equipment; it did not control an employee’s use of their personal computers and technology. The policy permitted employees to use work computers for non-work purposes, provided the use did not interfere with job duties. Employees could use UPMC’s equipment to participate in social media so long as employees did not describe their association with UPMC or disparage, misrepresent or make false or misleading statements about UPMC. The policy prohibited employees from telling anyone through social media where they worked, which the administrative law judge found effectively inhibited discussions with others about the terms and conditions of employees’ jobs and their workplace. The rule prohibiting the use of UPMC logos when posting on social media similarly was also found unlawful. The administrative law judge found that the prohibition against disparaging, misrepresenting, false or misleading statements would have the effect of discouraging employees from engaging in their lawful Section 7 rights. The administrative law judge concluded that, if the employer did not specifically define what was permissible and impermissible, the policy was too ambiguous and overly broad, and unlawful under Section 7.
Unquestionably, the NLRB has taken a very aggressive stance on what employers can and cannot do when it comes to regulating the employees’ use of electronic communication and social media. In many instances, administrative law judges are siding with the Labor Board and its frequent challenges of employers’ policies. This decision against UPMC and other similar decisions likely will be appealed by employers to the courts. Employers have a legitimate interest to monitor and manage employees’ use of electronic communication and social media when it impacts the workplace and coworkers. We should expect federal courts to have the final say about what electronic communication policies are lawful and enforceable.