Saturday, April 25, 2015

Labor and Employment Law: NLRB Rules That Employers Must Permit Non-Business Use of Email

By Scott T. Silverman and Dee Anna D. Hays

On December 11, the National Labor Relations Board (NLRB) reversed its prior position and held that employee use of email for activities directed to terms and conditions of employment must presumptively be permitted by employers who have given employees access to their email systems. The board’s decision in Purple Communications, Inc., 361 NLRB 126 (2014), means that employees have the legal right to use company email for non-business-related reasons, including union organizing, and will require most employers to revise their electronic communications policies. The shift in the board’s opinion reflects the change in its political makeup, with its three Democrats reversing prior precedent and its two Republicans dissenting.

The Purple Communications decision is troublesome for employers because it is essential for most employers to provide employees with access to email systems for business purposes.  Previously, in Register-Guard, 351 NLRB 1110 (2007), the board held that an employer may completely prohibit employees from using its email system for non-business purposes, provided it did not apply the ban discriminatorily. In Purple Communications, the board decided this analysis was "clearly incorrect," focusing too much on employer property rights and too little on the importance of email to workplace communication. The majority opinion found email to be akin to the "new water cooler," a "natural gathering place" for employees. Because an employer may not ban discussions on its property during non-working time, an employer may likewise not ban conversations occurring through email.

The board characterized its decision as "carefully limited" in two ways, neither of which provides much comfort to employers. First, the decision only applies to employees who have already been granted access to email systems, and employers are not required to grant access; however, most already do. Second, in undefined and "special circumstances," an employer may justify a total ban on non-work use of email to maintain production or discipline.  

An employer is permitted to apply limited, uniform, and consistently enforced controls over the email system, such as prohibiting mass emails and large attachments or audio/video segments. Further, "[a]n 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 monitoring during an organizational campaign, or focusing monitoring on union activists." Additionally, an employer may continue to notify employees that it monitors email for management reasons and that there is no expectation of privacy in employee use of the email system. 

The board continues to increasingly govern the non-union workplace. Although the decision will likely be appealed to federal court, employers are urged to immediately review their handbooks and consider revising them to come into compliance with the new standard. As a final note, the Purple Communications decision came just one day before the board implemented its long-anticipated "ambush election rules." Now many union elections will occur within a mere 10 to 21 days after a union requests a vote.