CLIENT UPDATE

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December 12, 2014

NLRB: Employees Permitted to Use Employer Email Systems for Statutorily-Protected Non-Business Purposes, Including Union Organizing

On December 11, 2014, a divided National Labor Relations Board (“Board”) decided that employee use of email for statutorily protected communications on nonworking time, such as union organizing and other activities authorized by Section 7 of the National Labor Relations Act (“Act”), is presumptively permitted by employers who have chosen to give employees access to their email systems. Purple Communications, Inc., 361 NLRB No. 126. 

Purple Communications maintained an electronic communications policy in its employee handbook limiting employee use of its email and other electronic systems to “business purposes only.”  The policy further prohibited employees from using the company’s email and other electronic systems the purposes of “engaging in activities on behalf of organizations or persons with no professional or business affiliation with the company” and “sending uninvited email of a personal nature.”  The Communications Workers of America (“Union”) filed unfair labor practice charges claiming that the electronic communications policy and other policies violated employees’ Section 7 rights.  An Administrative Law Judge (“ALJ”) found the email policy lawful based on the Board’s prior decision in Register Guard, 351 NLRB No. 1110 (2007), in which the Board held that employees have no statutory right to utilize their employer’s email systems for Section 7 purposes.

The Union appealed the ALJ’s decision to the Board. In Purple Communications, the Board ruled that email, although not the same as other tools of communication in the workplace, is fundamentally a forum for communication.  Noting the longstanding precedent that the Section 7 right to organize encompasses the right to effectively communicate with other employees at the jobsite, the Board concluded that it is consistent with the purposes and policies of the Act to adopt a presumption that employees who are authorized to use their employer’s email system in the course of their work are entitled to use the system to engage in Section 7-protected discussions about their terms and conditions of employment, including for purposes of union organizing, while on nonworking time.  The Board explicitly overruled Register Guard, finding that the Board had failed to adequately protect employees’ rights under the Act in its Register Guard decision. 

The Board did not specifically find the Purple Communications email policy unlawful, but rather remanded that question to the Administrative Law Judge.

The Board’s Purple Communications decision “does not prevent employers from continuing, as many already do, to monitor their computers and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for purposes of harassment or other activities that could give rise to employer liability.”  An employer’s monitoring of electronic communications on its email system will similarly be lawful “so long as the employer does nothing out of the ordinary, such as increasing its monitoring during an organizational campaign or focusing its monitoring efforts on protected conduct or union activists.”  

The Purple Communications decision applies only to employees who have already been granted access to the employer’s email system in the course of their work, and does not require employers to provide such access.  Further, pursuant to Purple Communications, an employer may justify a total or partial ban on non-work use of email, on nonworking time, by demonstrating that special circumstances make the ban necessary.  “Special circumstances” may include an assertion that the ban is necessary to maintain production or discipline.  However, the employer must specifically demonstrate the connection between the restriction and the interest sought to be protected. 

A copy of the Purple Communications decision can be downloaded at:
http://mynlrb.nlrb.gov/link/document.aspx/09031d45819e22c9.

Take Away for Employers

The attorney for Purple Communications has indicated that the company is considering appropriate next steps, which may include an appeal of this decision.  Pending any appeal and any decision from the ALJ on remand, employers who specifically prohibit employees from utilizing their email systems for union organizing purposes should consider revising that policy to comply with the Purple Communications decision.  Employers should ensure that any electronic communications policies are uniformly enforced, and are narrowly tailored to protect legitimate business interests. 

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We are available to discuss any questions or concerns you may have with respect to this decision and/or your electronic communication and related policies.