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December 31, 2014

NLRB Opens Employer's Email Systems - "A Natural Gathering Place" - To Employee Use During Non-Working Time

On December 11, 2014, a divided National Labor Relations Board ("NLRB"), in Purple Communications, Inc., 361 NLRB No. 126 (2014), overturned its 2007 decision in Register Guard, 315 NLRB 1110 (2007) and held that employees had a legally protected right to use an employer provided e-mail system to engage in protected concerted activity during non-work time. Further, the NLRB held that a policy prohibiting such activity is lawful only if an employer can establish special circumstances justifying the restriction.

The NLRB found the reasoning in Register Guard "badly flawed" noting that an employee's right to communicate about collective activity in the workplace was central to an employee's protected rights under Section 7 of the National Labor Relations Act. According to the majority, e-mail systems, as they exists today, are materially different than the types of employer workplace equipment at issue in prior NLRB cases involving an employee's access to employer equipment for purposes of collective activity. According to the majority, given the advances in e-mail technology, an employee's use of the employer's e-mail system for collective activity would not unduly interfere with an employer's operations as opposed to bulletin boards, telephone systems and public address systems involved in earlier cases. More troublesome, the NLRB evidenced a willingness to revisit those prior holdings, suggesting that, at least with respect to telephone systems, advancements in technology may now require a different result.

Relying heavily on the technological advancement of e-mail systems in the workplace, and the employer's reliance on such systems in meeting the needs of its business, the NLRB held that an employee who is provided access to an employer-owned e-mail system is presumed to have the right to use that system for Section 7 purposes during non-work time. Although an employer could rebut that presumption by showing that special circumstances necessary to maintain production or discipline justify restricting the employees rights, the NLRB noted that "it will be the rare case where special circumstances justify a total ban on nonwork e-mail use by employees." 319 NLRB No. 126, p. 14.

The NLRB was careful to note that the right did not extend to non-employees, although it did not explain how an employer would be able to prohibit responses from non-employees to e-mails sent by employees. Nor did the decision require an employer to grant an employee access to its e-mail system where the employer had not otherwise chosen to do so. In addition, any such communication would also have to be made during non-work time. Although the NLRB indicated that an employer could monitor the e-mail system for legitimate business purposes, "such as ensuring productivity and preventing the use of e-mails for activity such as harassment", it also cautioned that any such monitoring had to be non-discriminatory and could not be performed in response to protected activity such as an organizing campaign.

Most troublesome, the NLRB held that its decision in Purple Communications should be applied retroactively. The practical effect of the decision is that the vast majority of employers which have drafted policies prohibiting the use of e-mail for "Section 7 activity" and which otherwise complied with the NLRB's standard under Register Guard, now have policies that could be determined to violate the National Labor Relations Act.

While this may not be the last word, since the NLRB's decision is subject to appeal, any employer that provides an e-mail system to its employees and has a written policy concerning the use of that system, may wish to review that policy to make sure it complies with the new standard set forth in Purple Communications.

Finally, the many unanswered questions will no doubt lead to further litigation (for example, in respect of "special circumstances" required to support an employer's ban on employee use of the e-mail system for non-business purposes; the scope and circumstances surrounding an employer's monitoring of email content and disciplining employees for improper use; etc.).

If you have any questions about complying with federal, state or local anti-discrimination laws, please contact the Hiscock & Barclay lawyer with whom you normally work or any attorney in our Labor & Employment Practice Area.


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