On April 19, 2013, U.S. Administrative Law Judge David I. Goldman issued his decision and order in UPMC and SEIU Healthcare Pennsylvania, Case No. 06-CA-081896 (N.L.R.B. Apr. 19, 2013) and struck down an employer’s policies concerning employees’ use of non-work email and media as overly broad and ambiguous.
Although it is non-binding unless the National Labor Relations Board formally adopts it, the ruling reflects a disturbing trend. The NLRB views social media as the new “water cooler” – the quintessential outlet by which employees may engage in protected concerted activity. As a result, it continues to zealously protect employees’ social media activity, at the expense of well-intentioned employer restrictions.
Whether or not employers accept the ALJ’s reasoning (we discuss some lingering questions about the judge’s rationale below), UPMC demonstrates that employers must pay close attention as they attempt to manage risk in connection with workplace use of social media. Furthermore, the ruling has implications for defending any workplace class action, especially insofar as current employees - both in or not within a union - within a putative class use social media to comment upon and strategize over their workplace litigation issues.
UPMC operates approximately 20 hospitals in Pennsylvania through subsidiaries. Id. at 3. Following an investigation into unfair labor relations charges filed by the health workers’ union, the government brought suit against UPMC. It alleged, among other things, that three of UPMC’s email and social media policies violated Sections 7 and 8(a)(1) of the National Labor Relations Act because they were impermissibly broad and ambiguous. Id. at 4.
Sections 7 and 8(a)(1) of the NLRA
Section 7 of the NLRA protects associational rights of “non-union” employees as well as “union” employees. In particular, it gives employees the right to engage in concerted activities for their “mutual aid and protection,” including, for example, to discuss wages and other working conditions. Id. at 8.
Covered employees are afforded rights under Section 7 “even though no union activity [is] involved and even though no collective bargaining [is] contemplated [by the employees involved].” See NLRB v. Phoenix Mut. Life Ins. Co., 167 F.2d 983 (7th Cir 1948), cert. denied, 335 US 845 (1948).
Section 8(a)(1) prohibits employers from engaging in labor practices that “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7.”
The ALJ’s Opinion
The judge upheld UPMC’s Solicitation Policy but struck down its Email and Acceptable Use Policies.
- Solicitation Policy
UPMC’s Solicitation Policy prohibited employees from using the UPMC email to engage in solicitation and requires employees to report unauthorized solicitation to a supervisor or manager. UPMC at 4-5.
The judge upheld the solicitation policy because it barred all non-work solicitation and did not contain any “viewpoint discrimination.” That is, the policy did not, for example, permit anti-union messages but ban pro-union messages, and it required employees to report all substantive violations without regard to content. Id. at 10-11.
- Email Policy
UPMC’s Email Policy generally allowed employees to use email for non-work purposes but carved out certain prohibited uses, including emails that “may be disruptive, offensive to others, or harmful to morale” or emails “soliciting employees to support any union or organization, unless sanctioned by UPMC executive management.” Id. at 5.
The judge found that the Email Policy ran afoul of Section 8(a)(1) in two ways. First, UPMC prohibited certain types of non-work email but did not precisely define the types of communications that it barred. Employees, therefore, could reasonably interpret the policy as prohibiting “expression of certain protected viewpoints.” Id. at 14.
Second, UPMC barred solicitation for certain groups or organizations while allowing solicitation for other groups or organizations approved by UPMC management. In the judge’s view, a “management approval process for certain viewpoints and certain organizations is antithetical to Section 7 activity and a reasonable employee will be chilled from even asking.” Id. at 15.
- Acceptable Use Policy
UPMC’s Acceptable Use Policy provided that UPMC’s computers, email, servers, and network could only be used to support UPMC’s work-related and authorized activities. It prohibited employees from a range of inconsistent uses, including “independently” establishing or participating in Facebook or other social media accounts without prior consent, and it prohibited employees from describing any affiliation with UPMC and using UPMC’s logos or other copyrighted or trademarked materials. The Policy contained a “significant carve-out” for “de minimis personal use” by employees that did not affect job performance. Id. at 5-6.
As with the Email Policy, the judge concluded that the Acceptable Use Policy set out “overly broad and vague restrictions” on the use of IT resources. As an example, UPMC broadly prohibited employees from “describing any affiliation with UPMC” which would bar employees from telling anyone where they work and interfere with employees’ Section 7 rights to complain about their working conditions. Id. at 18-21.
The UPMC ruling demonstrates the difficulty that employers face when attempting to apply the Board’s broad pronouncements.
For example, the judge summarily rejected UPMC’s argument that “the hospital setting warrants unique restrictions on use of electronic communications.” Id. at 22 n.11. On one hand, UPMC is subject to onerous regulations concerning patients’ sensitive medical and private information. On the other hand, recent research indicates that a significant percentage of employees view access to social media during the workday as a necessity. (For example, an April 2013 Survey conducted by Intelligent Office found that a third of 1000 employees surveyed say they will not work for a company that has banned or blocked social media sites in the office.) The judge refused to grapple with these nuanced issues and advised that employers can simply avoid the problem by banning all non-work use of email. Id.
Perhaps more troubling, the judge likewise rejected UPMC’s effort to prohibit employees from using the company’s logos on social media sites. The judge acknowledged that employers have a right to prohibit trademark and copyright infringement but insisted that “[e]mployees have a Section 7 right to display a [company] logo as part of their Section 7 communications.” Id. at 20. Thus, the UPMC ruling leaves employees free to slap company logos on their private non-work (and unauthorized) posts – even though their views may be offensive, disruptive, or harmful to the company’s interests and even though the presence of logos may suggest that the company endorses the employees’ views.
Practical Tips for Employers
As UPMC demonstrates, employers do not have to permit any non-work employee use of email or social media. But, if they do, they must carefully fashion exceptions and restrictions so as not to interfere with employees’ Section 7 rights to engage in protected concerted activity. The judge highlighted some ways that UPMC could have drafted its policies to avoid these problems:
- Narrowly Tailor Policies: Because UPMC’s exceptions and prohibitions were too broad and ambiguously worded, they were open to interpretation. The judge assumed the broadest possible interpretation and found the policies, as written, overbroad. Employers should carefully construct social media policies to avoid these pitfalls.
- Carve-Outs: UPMC could have carved out protected concerted activity from its otherwise overbroad policies (but employers should note that such “savings clauses” are not silver bullets by any means).
- Illustrations/Guidance: UPMC could have provided “illustrations or guidance” to assist employees in interpreting its policies.
The union has stated that it plans to appeal the portion of the ruling upholding UPMC’s Solicitation Policy to the Board; UPMC has not indicated whether it will appeal the remainder of the ruling. Stay tuned.