November 23rd, 2016
NLRB: Workplace Emails for Unionization Permitted
As we predicted in our March 2014 Employment Law Bulletin, on December 11 the National Labor Relations Board reversed long-standing precedent and found that employees have a right to use their employers’ email systems for non-business purposes, including communicating with each other about union organizing. The 74-page decision in Purple Communications, Inc., overturned the 2007 Register-Guard decision, which had permitted employers to ban all non-work-related email, even if it concerned NLRA-protected emails, as long as the enforcement was non-discriminatory. This decision affects non-union workplaces as well, as it applies to “Section 7” protected concerted activity. Section 7 activities can include discussions of pay, discipline, hours, equipment, or any other terms or conditions of employment.
Practical Impact of the Decision
In reality, while the decision is decidedly pro-union, it is limited in some respects that will enable employers to manage its potential ramifications. Employers need to reconsider sweeping, blanket prohibitions on email use for purposes other than work, but otherwise may take the following steps to limit the damage this decision could portend:
- Employers are not required to make computers / email available to those whose jobs don’t require such access. If access is given, then the policy should specify that such access to the employer’s email system for personal use is only available during non-work time (breaks) and that employees who are off work have no right to access employer email for any personal purpose at any time.
- Although employees using company email for personal reasons during non-work time may email other employees during their work time, employers may prohibit employees from opening personal emails during work time.
- If employees take breaks away from work stations, there is no need to make computers / email available in break areas. Employers may require employees to use only personal email capabilities in those circumstances (smart phones).
- Employers have the right to prohibit the sending / receiving of emails from outsiders unless business related – either on work or non-work time.
- Employers have the right to monitor use of email under a valid, legal email use policy and then act upon violations of that policy.
- Employers may choose not to adjust their rules regarding personal email use during work and non-work time. While this is an option, if an employer allows employees unfettered access to its email system, understand that it may lead to posts regarding unionization at the employer’s place of business or other complaints concerning wages, hours or working conditions, i.e., employees engaged in protected, concerted activity.
We expect this case to be reviewed by a U.S. Circuit Court of Appeals. We also expect the NLRB to monitor electronic communication / privacy policies in the same fashion as it has employer social media policies, particularly if there is union organizing activity at the worksite.