Putney, Twombly, Hall & Hirson LLP
521 Fifth Avenue
New York, NY 10175
Tel: (212) 682-0020


September 23, 2015

NLRB Finds Hospital’s Policy Banning E-Mail Solicitation Unlawful

The National Labor Relations Board (the “Board”) has determined that a hospital’s concern that distracted employees might endanger patients is insufficient to permit a restriction on employee e-mail usage during non-work time.  The case is UPMC, 362 NLRB No. 191 (Aug. 27, 2015).

Previously, in Purple Communications, 361 NLRB No. 126 (2014), the Board held that it would presume employees who have been granted “rightful access” to an e-mail system for work also have a right to use it during non-work time for communications pursuant to Section 7 of the National Labor Relations Act (“Section 7”).  Section 7 gives workers the right to engage in union activity and concerted activities for their mutual aid or protection.  The Board also held that an employer may rebut the presumption “by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.” Purple Communications, 361 NLRB No. 126, slip op. at 14.  In UPMC, the Board clarified that an employer’s concern that distracted employees could endanger patient safety was not a sufficient special circumstance to rebut the presumption, even in a hospital setting. 

UPMC’s solicitation rule provided that “staff members may not use … electronic messaging systems to engage in solicitation.”  UPMC argued that its policy was justified by the “special circumstances” of being a health-care institution.  Specifically, UPMC relied on studies that found a connection between employee distraction and patient safety and that identified electronic devices as sources of employee distraction.  The Board disagreed, holding the policy was not justified by concerns that distracted employees could endanger patients.  Notably, although the Board indicated that it “did not doubt that using … email … during working time may be distracting,” the Board found that these concerns did not justify limiting the email prohibition to non-working time only.  Specifically, the majority wrote that UPMC’s cited concerns justified it either prohibiting access to email altogether, or prohibiting email during working time only. 

The NLRB’s decision illustrates that the Purple Communications rule will not be applied differently to employers in the health care industry despite patient safety concerns.  It also indicates that the current Board will continue to construe the “special circumstances” exception narrowly.

*          *          *

If you have any questions regarding this important decision by the Board, please do not hesitate to contact us.