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Labor and Employment Law

NLRB Re-Affirms That Workplace Policies Cannot Restrict Non-Work-Time Solicitations

 Have you recently reviewed your company’s Electronic Communications Policy, and other policies that regulate how employees use your email and other computer systems? If not, you might want to consider putting that to-do on your short list.

Late last year, in Purple Communications, the NLRB held that employers must permit employees to use corporate email systems during non-working time to communicate about union issues [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance]. Late last week, in UPMC [pdf] reaffirmed this standard [lexis.com | Lexis Advance].

At issue in UPMC was the following no-solicitation policy:

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….

All situations of unauthorized solicitation or distribution must be immediately reported to a supervisor or department director and the Human Resources Department and may subject the staff member to corrective action up to and including discharge.

The employer argued that its nature as a hospital necessitated a special-circumstances exception to Purple Communications, entitling it to limit employees’ use of its email systems across the board. The NLRB, however, disagreed:

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…. 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 other words, if you permit your employees to access and use your email and other electronic systems, then you cannot limit that access to work purposes only during non-work-time; employees must be permitted to engage in solicitations, which necessarily includes union-related solicitations. Anything more restrictive will almost certainly violate employees’ section 7 rights.

Hence, this is why I suggest, sooner rather than later, that you review, with your labor and employment counsel, your handbook and other workplace policies for compliance with the NLRB’s Purple Communications rule.

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Presented by Meyers, Roman, Friedberg & Lewis. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 831-0042 or jhyman@meyersroman.com.

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