On May 3, 2016, an administrative law judge struck down an employer’s computer use policy as violating employees’ rights to engage in concerted activity. (CAESARS ENTERTAINMENT CORPORATION d/b/a RIO ALL-SUITES HOTEL AND CASINO and INTERNATIONAL UNION OF PAINTERS AND ALLIED TRADES, DISTRICT COUNCIL 15). This decision comes shortly after the National Labor Relations Board (“NLRB”) General Counsel issued a memo in March 2016, requiring local regions to submit cases involving employer email policies to the Office of Advice for review. (Mandatory Submissions to the Division of Advice, 3/22/2016). These two recent developments are a warning flag to employers to update their email policies to reflect the current interpretation of how the National Labor Relations Act (“NLRA”) applies to email use.

As we have highlighted in prior articles on NLRA developments, many of the law’s obligations apply to non-unionized workplaces just as they do when an employer has a bargaining unit or organizing activity. (Facebook and the NLRB – What’s Not to “Like”). The recent limits on email policies apply to almost every non-public health care employer regardless of whether unions are present or not. Public health care organizations are often subject to state labor laws, which often follow NLRB precedent.

Like many other recent decisions impacting non-union workplaces, the recent email case and memo relate to an employee’s right to engage in concerted activity. Found in Section 7 of the NLRA, generally speaking, this right protects employee communications over terms and conditions of employment for mutual aid and protection. For example, the NLRB could consider an employee emailing another employee with a complaint about wage rates or a difficult supervisor to be concerted activity. Again, whether there is any union involvement or even a union presence in the workplace is not relevant. According to the NLRB, the employees do not have to be engaged in union organizing or seeking union assistance to be protected.

In the May 3rd Caesar’s decision, the judge stated employers violate the law when they have rules that employees would reasonably construe as restricting concerted activity. Additionally, if a rule is vague or ambiguous, such that it could be read to ban a concerted activity, the rule’s language is construed against the employer. In regards to email use, the Caesar’s judge described how a 2014 NLRB decision established a presumption that “employees who have been given access to the employer’s email system in the course of their work are entitled to use the system to engage in statutorily protected Section 7 discussions while on nonworking time.” (Purple Communications) Slip op. at 6.

Only if an employer can prove “special circumstances” may it overcome the presumption allowing employees non-work time use of employer email for concerted activities. Importantly for health care employers, in a 2015 decision adverse to University of Pittsburgh Medical Center (“UPMC”), the NLRB rejected the hospital’s argument that its policy should be upheld to protect patients. The medical center policy in that case provided: “No staff member may distribute any form of literature that is not related to UPMC business or staff duties at any time in any work, patient care, or treatment areas. Additionally, staff members may not use UPMC electronic messaging systems to engage in solicitation (see also Policy HS-IO147 Electronic Mail and Messaging).” UPMC, 362 NLRB No. 191 (Aug. 27, 2015). UPMC argued the health care setting presented special circumstances allowing more restrictive rules on computer use because such use is distracting and could cause medical errors.

In response to UPMC’s patient safety position, the NLRB held that “we do not doubt that using a hospital’s email system during working time may be distracting, and that when nurses and others responsible for patient care are distracted, errors may result that may affect patient safety. But, those concerns, however legitimate, do not justify a policy that prohibits the use of UPMC electronic messaging systems for only one type of communication, namely solicitation. Nothing in the studies cited by the respondents demonstrates that patient-safety interests would not be similarly affected by employee email use that the respondents have already authorized nor do the respondents explain why the concerns they identify would justify applying this prohibition to nonworking time. It seems to us that the asserted concerns would prompt the respondents either to deny employees access to UPMC’s email system altogether, which is lawful under Purple Communications, or to fashion a policy that applies solely to working time, also permitted under Purple Communications. In sum, the respondents have failed to rebut the presumption that their solicitation policy is unlawful.” Id.

In the Caesar’s case, the policy at issue had a number of provisions, including a prohibition on using company computer resources to send “chain letters or other forms of non-business information.” The judge considered the employer’s argument that special circumstances existed where the employer had a duty to protect confidential information under certain gaming regulations. This argument, which is not dissimilar to health care entities’ concerns arising from patient information laws, was rejected. The judge opined that there is no greater danger of a data breach during non-working time as compared to working time and that only a complete ban on email use would reduce breach risk. Because there were no special circumstances to overcome the presumption that non-work time email use for concerted activity cannot be prohibited, the judge struck down Caesar’s policy as “presumptively invalid.”

Regardless of whether you have any unionized employees or not, if your technology policies prohibit employee email use during non-working time, even in patient care areas, now is a good time to review whether you have special circumstances or language that does not infringe on employees’ concerted activity rights. And, if you do have bargaining units, do not revise your policies until you have either bargained over the new language or determined the edits would not constitute an unlawful unilateral change in terms and conditions.

We do not believe these recent NLRB rulings should diminish any health care employer’s commitment to patient care and safety. Rather, we believe these rulings should prompt health care employers to thoughtfully analyze their current email practices and policies to ensure compliance with the law.