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NLRB challenges e-mail and social media policies

published in Oklahoma Employment Law Letter | June 1, 2013

By Charles S. Plumb

Continuing a recent trend, the National Labor Relations Board (NLRB) has gone on the offensive, attacking employers’ policies concerning electronic communications and social media. Recently, the NLRB challenged a number of policies regarding electronic communications put in place by a group of Pittsburgh, Pennsylvania, hospitals and clinics.

Background

UPMC operates 20 hospitals and clinics in Pennsylvania. Its Pittsburgh facilities employ more than 10,000 workers. UPMC distributes personnel policies to all employees through its intranet. The NLRB specifically challenged three of its electronic communication and social media policies:

  1. A no-solicitation policy;
  2. An e-mail and messaging policy; and
  3. An acceptable use of information technology policy.

Section 7 of the National Labor Relations Act (NLRA) protects employees’ right to engage in various forms of “concerted activity.” Concerted activity includes employees’ right to openly discuss and share views about their employer and workplace. In today’s world, that communication may be electronic. Employees’ ability to communicate about their employer and workplace isn’t without its limits, however. In many instances, you can ban the use of your equipment, including your e-mail network and electronic resources.

When reviewing electronic communication and social media policies, the NLRB focuses on two issues:

  1. Is the policy overly broad or ambiguous? In other words, does the policy appear to ban some activity that is protected by Section 7, or is it unclear in a way that tends to “chill” (dissuade) employees from exercising their Section 7 rights?
  2. Does the policy discriminate by permitting some communication but prohibiting similar communication that involves Section 7 rights?

The NLRB also will investigate whether e-mail or social media policies were adopted specifically to impede a union or union-organizing activities.

In UPMC’s case, there was no evidence that the employer issued the policies in response to union-organizing efforts. Instead, the NLRB attacked its 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 their Section 7 rights. The Board’s charge against UPMC was heard by an administrative law judge (ALJ), who ruled on the case on April 19.

No-solicitation policy

UPMC’s no-solicitation policy prohibited the use of e-mail for all nonwork solicitations. There was no accusation that employees who engaged in solicitation on behalf of union organizations were disciplined while other employees received no discipline. Because there was no claim of discriminatory enforcement, the ALJ deemed UPMC’s no-solicitation policy lawful.

E-mail and messaging policy

The e-mail and messaging policy presented a different set of issues. The policy didn’t absolutely prohibit nonwork use of or solicitation through the e-mail system. It banned only electronic communications by employees that were “disruptive,” “offensive,” or “harmful to morale.” In terms of solicitation, the e-mail and messaging policy didn’t prohibit employees from soliciting on behalf of groups and organizations so long as the organizations were “sanctioned by UPMC executive management.”

The ALJ found this policy was vague and overly broad because the employees couldn’t determine with any certainty what types of communications were prohibited. Also, UPMC’s policy discriminated by permitting solicitation on behalf of employer-endorsed groups. For that reason, the ALJ found the policy could prevent employees from exercising their Section 7 rights, was overly broad, ambiguous, and discriminatory, and violated the NLRA.

Acceptable use of information technology policy

The acceptable use policy addressed employees’ use of UPMC’s electronic equipment but didn’t control their use of personal computers and technology. The policy permitted employees to use work computers for nonwork purposes, provided the use didn’t interfere with job duties. Employees could use UPMC’s equipment to participate in social media so long as they didn’t describe their association with the company, disparage or misrepresent it, or make false or misleading statements about it.

However, the policy prohibited employees from telling anyone through social media where they worked, which the ALJ found effectively inhibited discussions with others about the terms and conditions of their jobs and workplace. The rule prohibiting the use of UPMC’s logos when posting on social media sites similarly was deemed unlawful.

The ALJ found that the prohibition against disparaging, misrepresenting, and making false or misleading statements would have the effect of discouraging employees from engaging in their lawful Section 7 rights. The judge concluded that if the employer didn’t specifically define what was permissible and impermissible, the policy was too ambiguous, overly broad, and unlawful under Section 7.

Takeaway for Oklahoma employers

Unquestionably, the NLRB has taken a very aggressive stance on what you can and can’t do when it comes to regulating employees’ use of electronic communications and social media. In many instances, ALJs are siding with the Board and its frequent challenges of employers’ policies.

This decision against UPMC and other similar rulings likely will be appealed to the courts. You have a legitimate interest in monitoring and managing employees’ use of electronic communications and social media when it affects the workplace and your workers. We expect federal courts to have the final say about which electronic communications policies are lawful and enforceable.