Labor and Employment Practice Alert
NLRB Reverses Itself and Rules Employees Have Right to Use Employer E-Mail for Union Activity
The National Labor Relations Board (“NLRB”) reversed its previous rulings and held that employers must permit employees to use email for statutorily protected communications on non-working time. In the 3-2 Purple Communications, Inc. ruling, the NLRB overturned the 2007 decision which held that employees have no statutory right to use their employer’s email systems for union purposes. [1]
ABOUT THE NLRB RULING
The NLRB ruling stated that it was limited in its scope noting that it was balancing employees’ Section 7 rights to communicate along with the interests, including property interest, of their employers. Section 7 rights are the rights to engage in concerted protected activity such as organizing a union or discussing wages, hours and other terms and conditions of employment. The ruling applies only to employees who already have access to the employer’s email system in the course of their work. It does not require employers to provide access to the employers’ email systems. However, an employer in a “rare” case may implement a total ban on non-work use of email, including organizing use on non-working time, by showing that special circumstances make the ban necessary to maintain production or discipline. The employer must be able to justify this total ban. Even if the employer cannot justify a total ban on non-work use of email, the employer is not prohibited from “establishing uniform and consistently enforced restrictions, such as prohibiting large attachments or audio/video segments, if the employer can demonstrate that they would interfere with the email system’s efficient functioning.”
RULING SCOPE
The decision does not prevent employers from continuing to monitor their computers and email systems for legitimate management reasons, including ensuring productivity and preventing email use for purposes of harassment or other activities that could expose the employer to liability.
An employer can continue to monitor electronic communications so long as it does nothing out of the ordinary, such as increased monitoring during an organizational campaign, or focusing its monitoring efforts on protected conduct or union activists.
An employer may continue to notify its employees that it monitors or reserves the right to monitor computer and email use for legitimate management reasons and that employees may have no expectations of privacy in their use of the employers’ email system.
CONCLUSION
Although future appellate review is likely, the decision is current NLRB law. As a result, employers will need to review existing policies. Please contact a member of Simmons Perrine Moyer Bergman PLC’s Labor and Employment Practice should you need any assistance.
Note: [1] Purple Communications, Inc. 361 NLRB No. 126 (December 11, 2014).
Disclaimer: This update is designed and intended for general information purposes only and is not intended, nor should it be construed or relied on, as legal advice. Please consult your attorney if specific legal information is desired.
