In an August 27, 2015 decision, a majority of the Board found that the Purple Communications standard, with respect to an employer’s email system, would apply without exception to healthcare providers and, in particular, for acute care hospitals. Contrary to the cogent arguments put forth by member Johnson in his dissent, the majority found that there should be no exception to the presumption set forth under Purple Communications that employees have a statutory right to use an employer’s email system for Section 7 related communications during non-working time. The majority also found that the hospital failed to show “special circumstances” to rebut this presumption, notwithstanding the fact that evidence was submitted of studies finding a correlation between employee distractions and patients’ safety and identifying computers and other electronic communication devices as sources of such distraction. Again, member Johnson, in his dissent, sets forth the obvious impact of electronic distractions in a hospital setting, but to no avail. He also emphasizes the fact that the use of email is actually extremely difficult, if not impossible, to monitor in terms of limiting its use to non-working time for a number of logical reasons, especially with respect to when employees receive emails. Indeed, Johnson points out that an email system is a virtual work area. This fact, along with the fact that there were numerous other alternative modes of communication available for employee communication, which do not depend on access to the employer’s email system, such as the employees’ personal cell phones, other electronic devices, numerous break rooms, and other locations for face to face conversations, make the Purple Communications standard inapplicable in the cited employment context.
Needless to say, this decision will have an immense impact on how healthcare providers will be able to stem abuse of their email systems, as well as increase the risk of litigation over distracted healthcare providers.
Finally, as always, policies need to be reviewed and modified in light of this decision so that the enforcement of such policies do not run afoul of the NLRA and result in additional risk management considerations.