At the end of last year, the National Labor Relations Board (NLRB), in the case Purple Communications, Inc. and Communication Workers of America, ruled that employees who are given access to their employer’s email system in the course of their work have, except in the most limited of situations, a statutory right to use company emails for so-called “Section 7” activities during non-working time. The NLRB is the federal agency responsible for administering and overseeing the National Labor Relations Act. The National Labor Relations Act (NLRA) is the federal law that governs collective bargaining and labor relations in the private sector.
This case is significant because for the first time the NLRB has ruled that employers can no longer regulate or prohibit employees using company email to communicate with each other during non-working time about their terms and conditions of employment. This decision overturns the NLRB’s Register Guard ruling seven years earlier that employers could both regulate and absolutely prohibit employees from using company email systems completely for any non-business related purpose through a nondiscriminatory computer and email use policy because the employer owns the email and computer system and has a property right to dictate how company equipment could be used. This change appears to be a result of the NLRB’s belief that email communication is now the primary mode of communication in the modern workforce and therefore, to further the aims of the NLRA, employees must have access to such modes of communication in order to communicate with each other about union organizing and other matters which are protected under the NLRA. In essence, the NLRB deems an employer’s email system the modern day equivalent of the water cooler or break room where employees have traditionally engaged in such activities.
Many current company computer and email policies restrict computer use to “company business only” and/or “limited incidental personal use.” Such restrictions could run afoul of the Purple Communications ruling and we suggest that employers review thier policies and refind this language.
1. Under the Purple Communications ruling, employer restrictions on employee use the company email system must conform to the following new rules: It shall be presumed that employees who have access to their employer’s email system in the course of their work have a right to use the email system to engage in Section 7 protected communications on nonworking time;
2. In very “rare cases,” an employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting employees’ rights (but such limitations can be no more restrictive than necessary to protect the employer’s interests);
3. Where special circumstances do not justify a total ban, employers may nonetheless apply uniform and consistently enforced controls over their email system to the extent necessary to maintain production and discipline.
4. The ruling applies only to employees who have who have already been granted access to the employer’s email system in the course of their work and does not require employers to provide access to employees who do not have access to their employer’s email system in the normal course of business.
Section 7 Activities
The NLRB ruling protects only employee communications concerning Section 7 activities and does not restrict an employer’s right to regulate any other communications on its own email system (including employees using email for purely personal communications about family, travel or any other non-work related matter). Section 7 communications that fall within the NLRB’s ruling are those communications between employees that are “concerted” in nature and relate to the employees’ “terms and conditions” of employment. Thus employees communications about union organizing, or communications that relate to “mutual aid or protect” fall within protected speech that can occur during non-working time. Thus concerted activities for mutual aid and protection encompasses those circumstances where individual employees seek to initiate, induce, or prepare for group action about working conditions, or when an individual employee is bringing group complaints to the attention of management on behalf of employees. Section 7 rights apply to all employees, regardless of whether a union is on the ground or not – and thus would apply to all employers who fall under the jurisdiction of the Act.
Impact of Decision
While the NLRB’s ruling in Purple Communications will likely be challenged, it is now the rule that the NLRB will enforce. The decision creates many potential liabilities for employers. Employers that have adopted a business use only/incidental personal use of email policy must now review their policy to ensure it complies with the new ruling and exempt Section 7 communications during non-working time from such restrictions. Should an employer fail to revise its policy, it may be subject to an unfair labor practice charge. In addition, employers must think very carefully before disciplining an employee for using its email system during non-work hours for Section 7 activities. Finally, employers need to be extremely careful of monitoring employee email use that relate to Section 7 activities. Although nearly all employers' notify employees that there is no expectation of privacy in their company email system, so-called “surveillance” of Section 7 activities can be viewed as interfering with protected activities that could result in sanctions.
Please let us know if you would like us to review your existing email use policy and suggest changes to ensure compliance with the Purple Communications ruling.
