NLRB Strikes Again: Targets Use of Company E-mails
Kegler Brown E-mployment Alert December 15, 2014
In a widely anticipated and significant decision, the National Labor Relations Board (NLRB) overruled its own precedent and held that employers cannot prohibit their employees from using the company e-mail system to discuss their terms and conditions of employment during non-working time.
In 2007 the NLRB, which was then comprised of three Republicans and two Democrats, ruled in Register Guard that an employer could impose a policy that limited the use of the company e-mail system to "business purposes only" and that employers could prohibit the use of e-mail for certain purposes (e.g. union organizing). As a result, most prudent employers drafted policies which severely restricted the use of the company e-mail system.
The Board’s decision in Purple Communications overturned Register Guard and held that, in most cases, employees had a statutory right to use the employer’s electronic mail system to communicate about the terms and conditions of their employment, which presumably includes the question of whether they wish to be represented by a Union.
In Purple Communications, the Board held that a total ban on non-work-related use of e-mail is acceptable only where "special circumstances" necessitate the ban. "Special circumstances" are those that are required to maintain production or discipline in the workplace. The Board indicated it would be a rare circumstance where a total ban would be acceptable and gave the example of a situation where permitting employee use for non-work-related communications would damage or overload the Employer’s system.
The Board indicated that in more typical situations, where a complete ban would not be permissible, the employer remains free to apply uniform and consistently enforced controls of their email systems so long as they can show the controls are necessary to maintain production and discipline in the workplace.
The Board’s decision also indicated that is narrowly drafted, applies only to employees who have already been given access to the company e-mail system (meaning you don’t have to give employees access who don’t already have it), and does not address third party use of the employer’s e-mail system or other types of electronic communications, such as instant messaging.
What It Means For You
As a result of the Purple Communications decision, employers should review their policies regarding employee use of electronic mail. It may be necessary to consult your employment counsel to determine what, if any, restrictions on employee use of e-mail for non-work-related purposes may be appropriate in your workplace.