As employers increasingly utilize electronic technologies such as email, messaging, and social media in all aspects of their business, they have had to develop policies governing the use of these technologies. These policies have come under increasing scrutiny by the NLRB when they either prohibit protected union activity or are ambiguous enough to chill employees’ participation in such protected activities. As we previously mentioned, the NLRB has struck down certain provisions of employer social media policies. Further responding to these concerns, and in order to assist employers in drafting appropriate polices, the NLRB has issued guidance regarding social media policies.
Despite such guidance, the challenges to information technology and social media policies persist. On April 19, 2013, an administrative law judge for the NLRB considered a challenge to three policies promulgated by a hospital system. The three policies were: (1) a nonsolicitation policy; (2) an electronic mail and messaging policy (Email Policy); and (3) an acceptable use policy for information technology resources (IT Use Policy). The administrative law judge upheld the nonsolicitation policy, but struck down the other two policies based on their potential effect on employees’ rights to form or attempt to form a union under Section 7 of the National Labor Relations Act (Act).
The administrative law judge allowed the nonsolicitation policy to stand because it was an absolute restriction on the use of email for any solicitation at the workplace. The decision found that while employees do not have the right to use the employer’s email system for Section 7 purposes, because the use of email was banned for all solicitations, and not just union-related solicitations, this policy was acceptable.
The administrative law judge then turned to the Email Policy, which allowed the use of the employer’s email and messaging system for non-work-related purposes, unless such uses were offensive, disruptive, or harmful to morale. Because certain non-work uses of the systems were permitted, while others were banned, the administrative law judge found the rule was ambiguous and could be understood by employees to prohibit activity protected by the Act. The administrative law judge found this possible interpretation could chill employees’ exercise of their rights. The policy also allowed certain email solicitation of support for groups that were approved by the employer’s management, which the judge found was also banned by the Act because it would have required management approval of union-related solicitations.
The administrative law judge also struck down the IT Use policy, which allowed limited personal use of the employer’s IT resources, but forbade certain conduct, including using social media Web sites to disparage or post false or misleading information about the employer. The administrative law judge found this policy also violated the Act for largely the same reasons that the Email Policy did. Namely, the rule was ambiguous and may chill the employees’ protected activities under the Act.
The ongoing lesson from the NLRB’s continual focus on information technology and social media policies is that companies need to make sure their technology-use policies are clear and are not designed to impact employees’ protected rights. For example, a policy that bans all types of a certain activity, such as workplace solicitation through email, is more likely to be upheld. This of course assumes the employer is applying the policy fairly and consistently. However, policies that allow personal use of electronic resources in some, but not all situations, may be problematic. This is especially true where the policies might be interpreted by employees as prohibiting union-related speech, or where management approval of certain uses is required. Scrutiny of technology-use policies is likely to continue, and it is thus recommended that employers review and possibly revise their own policies in light of such ongoing scrutiny.