Dec 12, 2014

NLRB Reverses Precedent, Allows Employees to Use Employer’s E-Mail Systems for Union Organizing (a/k/a Employers Do Not Have Property Rights For Their Computers)

On December 11, 2014, the National Labor Relations Board (“NLRB”) issued a divided decision in the Purple Communications, Inc. case, ruling that employees have the right to use their employers’ e-mail systems for forms of protected concerted activity, including union organizing. The NLRB ruled that, “Consistent with the purposes and policies of the act and our obligation to accommodate the competing rights of employers and employees, we decide today that employee use of email for statutorily protected communications on non-working time must presumptively be permitted by employers who have chosen to give employees access to their email systems.” The majority noted that its decision was “carefully limited” and applies only to employees 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 such access.” The majority further stated that employers could “justify a total ban on non-work use of email” including use related to protected concerted activities on non-working time, “by demonstrating that special circumstances make the ban necessary to maintain production or discipline.”  Member Miscimmarra dissented, finding the majority’s standards “terribly suited to govern this very important area.”  Dissenting Member Johnson contended that the majority had granted a “new right” that destroys the principle that “employers hire people with the expectation that a certain readily definable quantity of time will be spent working….”

This decision reverses established NLRB precedent from 2007, the Register-Guard case, which previously held that “employees have no statutory right to use the [employer’s] e-mail system for Section 7 purposes.” The current case involves Purple Communications, Inc., a provider of sign language interpretation services. The Purple Communications’ employee handbook includes an electronic communications policy prohibiting employees from using its communications systems for non-business purposes, including for “engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company” and “sending uninvited email of a personal nature.” The NLRB’s decision overrules the Register-Guard case as “clearly incorrect” and remands to an administrative law judge the determination on whether Purple Communications violated the NLRA through its electronic communications policy.

Impact on Employers

The decision creates uncertainty for employers who must determine what type of “restrictions” on e-mails are needed and if they can be justified to the NLRB.  Additionally, monitoring employees’ e-mails now can create unlawful surveillance claims under the NLRA.  However, it will be interesting to see if Purple Communications has a significant impact on unions’ organizing efforts because they have used a myriad of electronic communications since Register-Guard.

Based on Purple Communications, employers should review their communications policies and employee handbooks in light of this decision.

If you have any questions about any of the issues discussed in this alert, please contact your Labor and Employment counsel at Smith, Gambrell & Russell, LLP.

This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.


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