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LEGAL ALERT
NLRB Rules that Employees Have a Right to Use Employer Email for Non-Work Purposes, Including Union Organizing
On December 11, 2014, a divided National Labor Relations Board (“NLRB” or the “Board”) ruled 3-2 that employees granted access to their employer’s email system must generally be permitted to use the email system during nonworking time for certain legally protected non-work communications including, but not limited to, communications regarding union organizing.
Purple Communications, Inc., 361 NLRB No. 126. In doing so, the Board overruled its 2007 decision in the Register Guard case, which held that employees have no statutory right to use an employer’s email system for such non-work communications.
Section 7 of the National Labor Relations Act (“NLRA”) guarantees employees the right to organize, form and join unions, to bargain collectively with their employers and to engage in other concerted activities for the purpose of “other mutual aid or protection.” These so-called “Section 7 rights,” which generally include the right to communicate with co-workers regarding terms and conditions of employment, are at the heart of the decision in the Purple Communications case. The dispute involved a challenge to an employer’s electronic communications policy that limited employee use of company email to “business purposes only” and prohibited certain other uses by employees. The Board’s decision to create a new presumption that employees may use their employer’s email system for Section 7 purposes during nonworking time focused on the rights of employees to communicate at work about their terms and conditions of employment and the importance of email as a primary means by which employees communicate in today’s workplace.
The NLRB limited its decision in two ways. First, the right to use email for purposes protected by Section 7 of the NLRA is limited to employees that have already been granted access to the employer’s email system in the course of their work. The NLRB’s decision does not require employers to provide email access to employees. Second, in certain cases an employer can justify a total ban on use of email for non-work related purposes when “special circumstances” render the ban necessary to maintain production or discipline. The decision notes that a total ban on non-business related email during nonworking time will only be lawful in “rare cases.” Absent circumstances that justify a total ban, an employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to “maintain production and discipline.” The Board’s decision provides very little guidance on how the “special circumstances” and “production and discipline” limits will be applied, and employers will likely face a heavy burden when attempting to justify bans on employee use of email for Section 7 activity during nonworking time.
It is not clear whether the employer in the Purple Communications decision will seek court review of the NLRB’s ruling. While it is possible this decision could be overturned at some point, employers covered by the NLRA – whether unionized or not – should consider prompt action to review and revise their electronic communications policies. In similar fashion, employers must ensure that their policies and practices are enforced in a manner consistent with the NLRB’s decision.
For more information about the NLRB’s decision, or for guidance on electronic communications policies generally, please contact Roy Galewski at 585-419-8661 / [email protected], or the Harris Beach attorney with whom you usually consult.
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This legal alert does not purport to be a substitute for advice of counsel on specific matters.