BY SUBHASH VISWANATHAN
On Dec. 11, the National Labor Relations
Board issued a 3-2 decision in Purple Communications
Inc., holding that employees have a
presumptive right to use their employer’s email
system during non-working time to communicate
regarding union organizing and to engage
in other protected concerted activities under
Section 7 of the National Labor Relations Act.
The board’s decision overruled a 2007 decision.
The ruling involved Purple Communications
in California. Its electronic communications
policy provided systems and equipment were
“to facilitate company business” and that “all
such equipment and access should be used for
business purposes only.”
The policy also prohibited employees from
using it to engage “in activities on behalf of
organizations or persons with no professional or
business affiliation with the company” and from
sending “uninvited email of a personal nature.”
There was no dispute that, under the board’s
2007 decision, the policy was perfectly lawful
as written.
In the fall of 2012, the Communications
Workers of America filed petitions to represent
employees at seven of Purple Communications’
facilities. After an election was held, the union
filed objections to the results of the election at
two facilities and an unfair labor practice charge,
alleging (among other things) that the electronic
communications policy interfered with the employees’
Section 7 rights.
An administrative law judge, relying on the
board’s 2007 decision, found the electronic
communications policy to be lawful. The board
majority, however, found that decision improperly
placed too much weight on the property rights
of employers in their own email systems and too
little weight on the Section 7 right of employees to communicate in the workplace about their
terms and conditions of employment.
The majority also believed that the decision
failed to recognize the importance of email as a
means by which employees engage in protected
communications. Therefore, the majority overruled
and held that employees have a presumptive
right to use their employer’s email system
during non-working time to engage in communications
protected by Section 7 of the Act.
The NLRB made clear that this presumption
applies only to employees who have been granted
access to the employer’s email system in the
course of their work and does not require an
employer to provide access to its email system to
employees who do not otherwise need it.
In addition, the NLRB held that an employer
may rebut the presumption and justify a total ban on non-business use of its e-mail system
by demonstrating that “special circumstances
make the ban necessary to maintain production
or discipline.”
Virtually no guidance is provided in the
decision regarding what those “special circumstances”
might be, but the board majority stated
that “we anticipate that it will be the rare case
where special circumstances justify a total ban
on non-work e-mail use by employees.”
NLRB remanded the case back to the administrative
law judge for a determination of whether
Purple Communications could successfully rebut
the presumption and justify the scope of its prohibition
on the personal use of email.
The restriction that employees may use their
employer’s email system for Section 7 purposes
only during non-working time raises a significant
question: Can an employer monitor employee
use of its e-mail systems during working time
to ensure compliance with this restriction and
discipline employees who are found to have engaged
in Section 7 activity through e-mail during
working time, without risking potential liability
for unlawful surveillance or discrimination based
on union activities?
According to the NLRB decision, an employer
may continue to notify employees that they
should have no expectation of privacy in their
use of the employer’s e-mail system and may
continue to monitor the use of its email system
for legitimate business purposes. However, the
board stated that this monitoring is lawful only if “the employer does nothing out of the ordinary.”
For example, the decision leaves open the
possibility that an employer’s increased monitoring
during a union organizing campaign or
an employer’s particular focus on employees
who are known union activists could result in
potential liability under Sections 8(a)(1) or
8(a)(3) of the Act.
In the view of the dissenting NLRB voters, an
employer’s interests in controlling the use of its
own electronic communications system should
prevail over employees’ interests in using that
system for union organizing activities, especially
in light of the availability of other electronic communications
networks such as employees’ own
personal email and social media sites.
Many employers’ electronic communications
policies already permit employees to engage in
some limited personal use of email systems as
long as that personal use does not interfere with
the employee’s work duties or the work duties of
other employees.
This type of policy may very well be lawful
even under the Purple Communications decision,
because, on its face, it likely would not
be interpreted to prohibit Section 7 protected
activity during non-working time. At this point,
however, if your electronic communications
policy contains a blanket prohibition on the use
of your email system for personal reasons, you
may want to consider potential revisions.
Viswanathan is a labor and employment law
attorney with Bond, Schoeneck & King.
Photo Courtesy Bond Schoeneck & King