By David G. Waytz & Krista A.P. Hatcher
On Thursday, December 11, 2014, the National Labor Relations Board (NLRB) overturned existing precedent in a decision that contains important implications as to how employers draft and implement their electronic communications policies.
In Purple Communications, Inc, a divided NLRB ruled that employees who are allowed to use their employer’s email for work purposes have a presumptive right to use that email for activity that is protected under Section 7 of the National Labor Relations Act, which includes communicating about union organizing. The decision overturns the Board’s 2007 decision in Register Guard, which held that employees had no statutory right to use their employer’s email systems to engage in Section 7 activity.
Purple Communications concerned a challenge to an employer’s policy which provided that employees could use company computers, emails and the internet “for business purposes only.” The policy also prohibited employees from using company technology to engage “in activities on behalf of organizations or persons with no professional or business affiliation with the Company,” and prohibited “[s]ending uninvited email of a personal nature.” After a union election, the union filed objections and alleged that the employer’s policy “interfered with the interpreters’ freedom of choice in the election” and constituted an unfair labor practice. An administrative law judge initially found the policy lawful under Register Guard.
The Board has now held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.” The three former union attorneys on the Board ruled in the union’s favor, while the two management side members dissented.
The majority noted that its decision was limited to employees who have already been granted email access by their employers in the course of their work, and does not require employers to provide such access. The Board also stated that an employer could justify a total ban on non-work email use by showing that “special circumstances make the ban necessary to maintain production or discipline.” Even without justification for such a ban, employers “may apply uniform and consistently enforced controls” over their email systems to the extent those controls are “necessary to maintain production and discipline.” Furthermore, the Board noted that its decision was limited to email access by employees, and did not address other forms of communication, such as text messages or instant messages, or email access by nonemployees (which would include union officials).
The Board did not rule as to whether the specific employer’s policy at issue violated the NLRA, but remanded it for a determination by the Administrative Law Judge who had previously dismissed the case.
Although this decision is subject to appeal in a federal court, employers should carefully review and consider revising their electronic communications policies and practices. Employers should be particularly wary of maintaining any policy which completely bars employees from using company email for non-work purposes.
Stay tuned next week for an additional FredALERT detailing the NLRB’s recent adoption of a final rule amending its election procedures. This rule changes the election process significantly and it will dramatically affect employers.