NLRB Decision Gives Employees Greater Protection When Using Company Email
In perhaps a surprising reversal of precedent, the National Labor Relations Board, recently held in Purple Communications, Inc. and Communications Workers of America, AFL-CIO (“Purple Communications”), that employees should be permitted to use their employers’ email systems on non-working time for Section 7 purposes. This is a complete shift from the NLRB’s Register Guard decision in 2007 which held that employees do not have a statutory right to use their employer’s email system for Section 7 purposes, so long as the employers’ ban is not discriminatorily applied.
Because the National Labor Relations Act is applicable to almost all private employers (public employers are excluded), the ramifications of this decision could be quite large. The stated purpose of the NLRA is to give employees a mechanism to band together to improve their lives at work. Protected Section 7 activity includes a concerted effort (must be more than one employee) in the areas of wages or working conditions. Traditionally, Section 7 activity happened at the water cooler in breakrooms nationwide but today these conversations occur more frequently over email and on social media. The NLRB has been very active in pursuing cases involving the workplace and technology and this area of the law is still emerging.
Employers may rebut the presumption that employees can use Company email for Section 7 purposes on non-working time by showing that special circumstances justify a total ban on employee use of Company email. The employer must demonstrate a nexus between the interest asserted and the restriction imposed. It is not sufficient to show a prior handbook policy which prohibited this conduct as Purple Communications applies retroactively.
It is important to note that the NLRB stopped short of holding that Purple Communication’s electronic communications policy was overly broad or improper but remanded the case on this issue. However, this leaves open the question that many employers will have regarding their current policies that ban employee use of email for all non-business purposes. It is a good idea to review your Company’s electronic communications policy to determine whether you need to revise it in keeping with the Purple Communications decision.