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ALJ finds two out of three electronic media use policies overly restrictive

Two out of three of a health care employer’s computer use policies governing email and electronic media were found overbroad by an NLRB Administrative Law Judge because they could chill employees’ Sec. 7 rights. Although the ALJ found the solicitation policy lawful because it prohibited the use of email for all nonwork solicitations, the electronic mail and messaging policy and the acceptable use of IT resources policy both were facially overbroad and ambiguous for, among other reasons, requiring some type of management approval for certain nonwork uses.

Solicitation policy. UPMC’s solicitation policy prohibited the use of email for all nonwork solicitations, period. Other nonwork use of the email system was not barred; rather, the line was drawn based on solicitation/nonsolicitation generally, not on Sec. 7 lines, the ALJ noted. Accordingly, under Register-Guard, the solicitation policy was lawful because it barred no Sec. 7 activity that the Board has found takes precedence over an employer’s assertion of a property right to bar generally nonwork solicitation. Further, given that, the ALJ found it also was not unlawful for the policy to require employees to report violations.

Electronic mail and messaging policy. In contrast to the no-solicitation email policy, the email and messaging policy itself did not bar all employee nonwork use of email, but only some nonwork use of email, which is what created the problem for the ALJ. Nonwork email usage was allowed under the policy unless it might be “disruptive,” or “offensive,” or “harmful to morale.” Further, under this policy, solicitation was barred only if it sought to have employees “support any group or organization,” and even that was permitted if it were “sanctioned by UPMC executive management.” Additionally, there were no illustrations or guidance provided that would assist an employee in interpreting these terms. It was clear to the ALJ that these terms would reasonably be understood to include communication about unions and criticism of UPMC’s working conditions while permitting widespread nonwork use of the email system for an array other subjects. As such, the policy failed to define the area of permissible conduct in a manner clear to employees and caused employees to refrain from engaging in protected activities.

Independently, the electronic mail and messaging policy’s ban on solicitation that sought to have employees “support any group or organization, unless sanctioned by UPMC executive management,” also violated the NLRA. This was not a rule barring use of an employer’s email system for nonwork matters, including Sec. 7 solicitation, nor was it a rule barring solicitation in support of any group or organization. By requiring permission from UPMC executive management, said the ALJ, the rule “invites reasonable employees to believe that Sec. 7 activity is prohibited without prior management permission.” Employees wanting to use email for Sec. 7 purposes were required to disclose this to and seek permission from management, and the chilling effect was unavoidable.

Acceptable use of IT resources policy. UPMC’s acceptable use of IT resources policy established a broad restriction on the use of UPMC’s information technology for “business, clinical, research, and educational activities of UPMC workforce members.” However, the policy stated an exception in the event a UPMC technology resource was assigned to an employee; then, the employee was permitted de minimis personal use of that resource. The policy expressly defined “de minimis personal use” as use that neither affected the employee’s job performance nor prevented other employees from performing their job duties.

UPMC argued that read in context, this policy was exclusively intended to govern communications that could reasonably be construed as being made on its behalf, suggesting also that it only restricted employees’ use of UPMC equipment and activities at work. Although agreeing that the policy addressed use of UPMC IT resources—not employees’ own computers and technology—the ALJ did not find that the policy could only be read to cover communications purportedly made on behalf of UPMC. More troubling, however, was the “de minimis personal use” issue, which almost by definition is use of the computer systems not made by employees on behalf of UPMC.

Read in context, the ALJ interpreted the policy to mean that employees were allowed to use computers for nonwork purposes to the extent it did not interfere with job duties, and employees could even use these resources for social media communication well beyond communicating with others using UPMC equipment. By implication the policy permitted employees to use UPMC equipment for Facebook, Twitter, and other such sites, as long as employees did not describe any affiliation with UPMC, did not “disparage or misrepresent” UPMC, make “false or misleading statements regarding UPMC,” or use UPMC logos or other copyrighted or trademarked materials. But employees could make statements and communications that fell within the scope of these restricted areas if written prior consent were obtained from UPMC.

Using the same rationale he had for the email and messaging policy, the ALJ found these restrictive provisions, which employees could avoid if they sought and received permission from the employer, unlawfully overbroad and vague. Nothing in UPMC’s rule indicated that any protected activity was exempt from the rule, and as such, the rule on its face impermissibly chilled Sec. 7 activity. To be acceptable, the rule would need to explain which protected conduct was permitted and which was not.

Specifically, the restriction on describing any affiliation with UPMC could be reasonably read to prohibit employees on Facebook, Twitter, etc., from telling anyone where they work, which would severely inhibit any discussion of terms and conditions of their employment. That portion prohibiting the use of UPMC logos (and other trademarked or copyrighted materials) by employees when they posted on social media sites, for example, was also too broad. Employees have a Sec. 7 right to display a logo as part of their Sec. 7 communications, the ALJ pointed out. Moreover, the acceptable use policy made it clear that its limitations—on disparaging, misrepresenting, making false or misleading statements, or using UPMC logos—could be avoided if employees received prior written permission from UPMC, a requirement that the ALJ found antithetical to employees’ Sec. 7 rights. Finally, because the IT policy required employees to get written approval before transferring “sensitive, confidential, and highly confidential information” over the Internet, which was defined to include compensation data, benefits data, and coworker data, among other things, the policy would reasonably chill protected employee discussion such as on wages, personnel matters, benefits and other terms and conditions of employment.

UPMC, April 19, 2013 (released April 23, 2013); the case number is 06–CA–081896.

By Joy P. Waltemath, J.D.