Almost overnight, COVID-19 has radically altered the American workplace. Employers and employees alike have been forced to adapt to unique issues related to employee health, compensation, leave, and in unfortunate circumstances, furlough or lay-off.
Such change may be accompanied by grievances, concerns, and fears. And in some instances, employees will desire to communicate those anxieties to the greater public at large. Naturally, employers will want to have some degree of control over this messaging, while preserving the rights of employees to express themselves individually or collectively. These principles are sometimes difficult to reconcile. But a recent NLRB decision, Karen Jo Young v. Maine Coast Regional Health Facilities, issued on March 30, illuminates some fundamental principles that can help employers manage this balance during these difficult circumstances.
In September 2017, Karen-Jo Young, an employee of Maine Coast Regional Health Facilities (whose parent was Eastern Maine Hospital Systems (“EMHS”)), wrote a letter to the editor of a local newspaper, discussing staffing shortages at her hospital and expressing support for the local nurses’ union’s efforts. At the time, EMHS maintained a media policy which explained that:
No EMHS employee may contact or release to news media information about EMHS, its member organizations, or their subsidiaries without the direct involvement of the EMHS Community Relations Department or of the chief operating officer responsible for that organization. Any employee receiving an inquiry from the media will direct that inquiry to the EMHS Community Relations Department, or Community Relations staff at that organization for appropriate handling.
On the day Young’s letter was published, EMHS discharged her for violating the media policy. Shortly thereafter, Young filed an unfair labor practice charge.
On January 18, 2018, after Young had filed her charge, EMHS amended its media policy by adding a “savings clause,” which stated that the media policy did “not apply to communications by employees, not made on behalf of EMHS…concerning a labor dispute or other concerted communications for the purpose of mutual aid or protection protected by the National Labor Relations Act.”
The administrative law judge held that EMHS’ original media policy was unlawful and that when Young wrote the letter to the editor, she engaged in protected concerted activity. Therefore, her termination was unlawful. The ALJ went one step further, however, and also held that the policy continued to be unlawful even after EMHS amended it with the savings clause.
EMHS appealed the ALJ’s rulings. On appeal, the NLRB affirmed the ALJ’s conclusion that Young’s termination was unlawful, and also agreed that EMHS’ original policy was improper under the NLRA. The NLRB did, however, reverse the ALJ’s ruling with respect to the savings clause, explaining that the amendment to the media policy expressly carved out communications made by employees “not made on behalf of EMHS . . . concerning a labor dispute or other concerted communications for the purpose of mutual aid or protection protected by the [NLRA].” With such a carve out, no employee, the NLRB explained, could reasonably interpret the amended policy to interfere with employee rights to engage in protected concerted activity under Section 7 of the NLRA.
As COVID-19 continues to stress workplaces, the Maine Coast decision comes out at a time when company media policies may very well be put to the test. As such, employers should review their policies to confirm compliance with the NLRA. As the Maine Coast decision reveals, media policies should not categorically preclude employees from speaking about their workplace to news organizations. Rather, policies should focus on legitimate business concerns, such as prohibiting employees from disclosing confidential or proprietary information, and should allow employees to communicate workplace concerns if doing so for purposes protected by the NLRA.