NLRB Overrules Prior Decision That Allowed Total Bans on Employee Use of Work Email for Nonwork Purposes

Category: Client Update
Date: Jan 23, 2015 01:07 PM

Purple Communications, Inc. provides sign language interpretation services.  Its employees provide two-way, real-time interpretation of telephone communications between deaf and hearing individuals.  Since June 2012, Purple Communications has maintained an electronic communications policy that states company equipment, including email, should be used for business purposes only, and that employees are strictly prohibited from using email systems to engage in activities on behalf of organizations unaffiliated with the company.  Communications Workers of America, AFL-CIO filed an unfair practice charge with the National Labor Relations Board (NLRB) regarding the policy.  The administrative law judge found that the policy was lawful, but the NLRB reversed. 

Section 7 of the National Labor Relations Act grants employees of private employers the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection.  In 2007, the NLRB held, over the dissent of two members, that an employer may completely prohibit employees from using the employer's email system for Section 7 purposes, even if the employers are otherwise permitted access to the system, without demonstrating any business justification, so long as the employer's ban is not applied discriminatorily.   

The NLRB has now overruled that 2007 decision.  The NLRB reasoned that both it and the Supreme Court have recognized that the workplace, and at times a particular location in the workplace, is a "natural gathering place" for employees to communicate with each other.  In many workplaces, email is now pervasively used for employee conversations, and has effectively become the new "natural gathering place."  Further, unlike other types of employer equipment that facilitate communication, such as bulletin boards or copy machines, an employee's use of email rarely interferes with others' use of the same system or adds significant usage costs.  Therefore, the NLRB held that it will now presume that employees who have rightful access to their employer's email system in the course of their work have the right to use the email system to engage in Section 7-protected communications on nonworking time.  An employer may rebut that presumption by demonstrating special circumstances necessary to maintain production or discipline to justify restricting its employees' rights. 

The NLRB stated that it anticipates "that it will be a rare case where special circumstances justify a total ban on non-work email use by employees."  Generally, "where special circumstances do not justify a total ban, employers may nonetheless apply uniform and consistently enforced controls over their email systems to the extent that such controls are necessary to maintain production and discipline."  It also noted that employers may continue to monitor their computers and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for purposes of harassment or other circumstances that could give rise to employer liability, but should not increase monitoring during organizational campaigns or focus their monitoring on protected conduct. 

The NLRB remanded the case back to the administrative law judge for further action consistent with its opinion.    

Note:

This decision relies upon the National Labor Relations Act (NLRA), which applies to private sector labor-management relations.  Although the NLRA is a private sector labor relations statute, the California Public Employment Relations Board (PERB) often references the NLRA to interpret public sector labor relations statutes, such as the Meyers-Milias-Brown Act (MMBA) (Cal. Government Code section 3500 et. seq.).

Though this decision does not directly apply to public agencies, PERB may use this decision to determine that a public agency's electronic use policies are an infringement on an employee's representation rights under the MMBA, or another public sector labor relations statute.  The decision does state that employers can apply uniform and consistently enforced controls over their email systems to the extent such controls are necessary to maintain production and discipline.  In addition, the decision does not prevent employers from continuing to monitor their computers and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for purposes of harassment or other activities that could give rise to employer liability.  Agencies should audit their electronic use policies to reduce the risk that PERB determines that such policies are overbroad and improperly infringe upon employees' representation rights. 

Purple Communications, Inc. (2014) 361 NLRB No. 126.

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