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  03.06.2015  
 
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Is Your Computer Use Policy Legal? NLRB Finds a Presumptive Right for Employees to Use Employer’s Email System for Protected Activity

By Kimberly J. Korando

Does your company give employees access to company email? Do you prohibit employees from using the company email for personal, non-company use? If so, your policy may violate federal law. In a long-awaited decision, Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014), a divided National Labor Relations Board ("NLRB" or the "Board") reversed precedent and held that absent a showing of “special circumstances,” employers who give employees access to their email system must allow the employees to use those systems to engage in protected activity on non-work time. Employers must promptly review their policies because the Purple Communications rule is being applied retroactively. Covered employers should revise any policy prohibiting all use of employer-provided email for personal use. 

Facts

Purple Communications (the "Company") is a sign-language interpretation company that provides two-way, real-time interpretation of telephone communications for deaf and hearing-impaired individuals. The interpreters, working at call centers nationwide, have access to the Company's email system from computers at their workstations and in breakrooms as well as on their personal devices. The Company’s computer use policy prohibited the use of Company technology to engage in “activities on behalf of organizations or persons with no professional or business affiliation with the Company” or to send “uninvited emails of a personal nature.” In 2012, a union petitioning to represent the employees objected to some of the election results and claimed that the Company's policy interfered with employee freedom of choice in elections. The union filed an unfair labor practice charge with the NLRB complaining that the policy restricted protected activity. 

The administrative law judge who first ruled on the case found the policies lawful under the NLRB’s decision in Register Guard, 351 NLRB 1110 (2007), and dismissed the complaint.  Both parties filed objections to this decision, and the NLRB invited the parties and others to file briefs on the issues, including whether Register Guard should be overruled.

On December 11, 2014, the NLRB issued the Purple Communications decision.

The Decision

The NLRB’s decision in Purple Communications did, in fact, overrule the holding from Register Guard. Under Register Guard, an employer could ban non-work-related use of the employer’s email system, just as an employer could ban non-work-related use of other communication devices (e.g., copy machines, bulletin boards or telephone systems). These bans were allowable assuming they were not applied in a discriminatory manner. However, in reversing that decision, the Purple Communications decision found that Register Guard put too much focus on the employer’s property rights and too little focus on the importance of email as a “critical means of communication” in the workplace. The Purple Communications decision extended the holding in Republic Aviation, 324 U.S. 793 (1945) (holding that an employer’s ban on all Section 7 oral communications on the employer’s property would be presumptively invalid). The decision also distinguished Board precedent regarding other types of employer-owned equipment by finding that email is distinct from other employer-owned equipment in that an email system is not a limited and finite resource and its use for employee protected activity does not hinder the employer’s use of the equipment (i.e., unlike a bulletin board where space is limited or a telephone system with a finite number of lines). The Board emphasized that, as opposed to other employer communications equipment, email is a “natural gathering place” akin to a workplace cafeteria or break room. The Board stated that the effectiveness of Section 7 rights (rights to communicate regarding terms and conditions of employment) depends on the employees’ ability to communicate with others of common interest and that email is central to this ability.  

The new rule, as established under Purple Communications, is that employees who have been provided access to an employer’s email system are presumed “entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on non-working time, absent a showing by the employer of special circumstances that justify specific restrictions.” Employers must show “special circumstances necessary to maintain production or discipline” in order to rebut the presumption and must justify any restrictions to the employees’ access to the email system.

Importantly, the NLRB stated that it would apply the rule retroactively to currently pending cases.

Dissents

The NLRB decision was sharply divided, 3-2. Two Board members, Miscimarra and Johnson, issued dissents to the opinion. Miscimarra's dissent disagreed with the conclusion that an employer's limit of its email system to business only communications is an “unreasonable impediment to self-organization.” The dissent stated that the majority should have given more weight to the employer’s property rights. Miscimarra also asserted that the holding is contradictory with other requirements of the National Labor Relations Act ("NLRA" or the "Act") such as the Act’s prohibition on surveillance of protected activities. 

The second dissent, issued by Johnson, distinguishes email from communications at the traditional “water cooler” gathering place in that a water cooler is clearly a non-work area, employees can easily choose to leave the area, and such communications are not subject to endless repetition, whereas email is not bound by space or time limitations and will most certainly bleed into work time. Johnson expressed a concern with infringement on productivity and pointed out that prior holdings measured alternatives before extending rights to employer property. These prior decisions limited access to employer property to only such access that is “adequate” for “effective” exercise of protected rights. The Purple Communications decision sets no such limits. Johnson also expressed concern that the new rule may violate the First Amendment, as it will inevitably force the employer to subsidize hostile speech.

Finally, both dissents found the parameters of the new rule to be confusing and hard to implement as opposed to the easily understood, long-standing rule of Register Guard.

Open Questions

The Purple Communications decision did not find any right to non-employee access to employers’ email systems. Therefore, the effect of a non-employee’s inclusion in an employee's communication is unknown. The decision also did not address any rights to email communication on the employers’ email system during work time. Open questions remain as to what “special circumstances” regarding “production” or “discipline” may justify limitations on non-business email use. The only guidance given in the decision was that an employer who could demonstrate interference with the efficiency of its email system could limit large attachments if the limit is consistently enforced. Further, although the decision stated that the employer maintains surveillance rights for legitimate reasons, the impact on employer surveillance rights is unknown. It is also unknown whether, in reaction to the decision, an employer may take away previously granted access to an email system in order to prevent use of the system for these non-business, protected communications. Also, it is yet to be seen how the NLRB will establish “work” and “non-work” time, as this has become more difficult to define in the modern workplace.

Employer Application

Purple Communications applies to all employers covered by the NLRA regardless of whether a union represents or seeks to represent its workers. Most employers are covered by the NLRA with the exception of state, county and local governments, and some other exempted employers. It is important for employers to know whether they are subject to the NLRA and NLRB jurisdiction. Details on the jurisdictional standards are available at www.nlrb.gov. Additionally, the decision does not apply to policies limited to conduct by supervisors, managers or other confidential employees (such as human resources personnel). 

Guidance

For employers covered by the NLRA, the following guidance applies to policies governing non-supervisory employees: 

  • Promptly review policies. The Purple Communications rule is being applied retroactively.
  • Revise any policy prohibiting all personal use of employer-provided email. Policies must not prohibit email use for statutorily-protected communications on non-working time.
  • Be sure that any restrictions on statutorily-protected communications can be justified. Employers may be able to justify a policy enacting certain restrictions to the use of employer-provided email if the employer can establish that the restrictions are necessary to maintain discipline or production, including preventing interference with email system efficiency. However, the restrictions must be uniform and consistently enforced. 
  • Review other communication policies. Employers must ensure policies do not establish or impose overly-broad restrictions on employee communication, particularly those polices that may reasonably tend to chill protected communications. This may include policies addressing solicitation or communicating confidential information. 
  • Review the monitoring policy and related discipline procedures. Employers should notify employees that their workplace email may be monitored, but should carefully review their monitoring policy and related discipline procedures under the Purple Communications framework. Employers should carefully assess the risks before monitoring or disciplining employees as a result of monitoring, particularly if there are known protected communications occurring on the email system.

It is important for employers to note that the decision does not require them to grant employees new access to the employer's email system nor to grant access to non-employees.

Finally, employers should closely watch the status of this decision as it is likely to be appealed to a federal court of appeals and then potentially to the U.S. Supreme Court. The issue also may be taken up and statutorily addressed by Congress. Further, employers should monitor future NLRB rulings as the majority of the Board strongly suggested that the Board would likely extend the presumption to other employer equipment. 

 
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Smith Anderson publishes Alerts periodically as a service to clients and friends. The purpose of this Alert is to provide general information about significant legal developments and does not provide, and should not be relied upon as, legal advice. It does not convey an offer to represent you or an attorney-client relationship. Readers should be aware that the facts may vary from one situation to another, so the conclusions stated herein may not be applicable to the reader's particular circumstances. This communication may be considered a commercial electronic mail message under applicable legislation regarding unsolicited commercial email. 

 

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