• Labor Board Adopts Presumption that Employees Can Use Employer’s Email System to Engage in Protected Activity
  • February 26, 2015 | Authors: Howard M. Bloom; Richard I. Greenberg; Nicky Jatana; April Upchurch Olsen; Philip B. Rosen
  • Law Firms: Jackson Lewis P.C. - Boston Office ; Jackson Lewis P.C. - New York Office ; Jackson Lewis P.C. - Los Angeles Office ; Jackson Lewis P.C. - Portland Office ; Jackson Lewis P.C. - New York Office
  • In a controversial, but not unexpected, decision reversing precedent, the National Labor Relations Board has held that, absent special circumstances that justify specific restrictions, employers must permit employees who have been provided access to their employer’s email system to use that system for statutorily protected communications on their non-working time under the National Labor Relations Act. Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014). The 3-2 decision applies retroactively.

    Facts

    Purple Communications provides sign-language interpretation services. Its employees provide two-way, real-time interpretation of telephone communications between deaf or hard-of-hearing individuals and hearing individuals. The interpreters work at 16 call centers and all are assigned and use on a daily basis individual email accounts on the company’s system. Employees can access their email accounts at their workstations, in break areas, and on their personal computers and smartphones.

    In the fall of 2012, the Union (Communication Workers of America) filed a petition to represent the interpreters and Board elections were held at seven of the call centers. The Union filed objections to some of the election results and challenged the employer’s electronic communications policy, which strictly prohibited employees from using its computer, internet, voicemail and email systems, and other company equipment to engage “in activities on behalf of organizations or persons with no professional or business affiliation with the Company,” and to send “uninvited email of a personal nature.” According to the Union, the policy interfered with the interpreters’ freedom of choice in two of the elections. The Union also filed an unfair labor practice charge with the NLRB regarding the policy, which led to the issuance of a complaint and the case at issue.

    The NLRB’s administrative law judge, finding the employer’s electronic communications policy was lawful under the Board’s decision in Register Guard, 351 NLRB 1110 (2007), dismissed the complaint and overruled the Union’s related election objections.

    The Board’s Register Guard decision held that employers may prohibit completely employees from using the employer’s email system for purposes of Section 7 of the NLRA (which protects employees’ rights to engage in concerted activity), even if employees are otherwise given access to the system, without any obligation to demonstrate business justification, as long as the employer’s ban is not applied in a discriminatory manner.

    After both parties filed exceptions to the ALJ’s decision, the Board invited the parties and interested others to file briefs on several questions, including whether the Board should reconsider its conclusion in Register Guard and what standard should apply if the Board overruled Register Guard.

    Register Guard Overruled

    In Purple Communications, the Board majority overruled Register Guard and set forth a new rule: employees who have been provided access to the employer’s email system are presumed entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment during non-working time, absent a showing by the employer of special circumstances that justify specific restrictions. To overcome the presumption by demonstrating special circumstances, an employer must articulate the specific business interest at issue and show how the interest supports a restriction on email usage during non-working time.

    According to the Board majority, the analysis in Register Guard focused too much on employer property rights and too little on the importance of email as a means of workplace communication, did not adequately protect employees’ Section 7 rights under the Act, and failed to “adapt the Act to the changing patterns of industrial life.”

    The majority found Register Guard’s reliance on the notion that email systems are equivalent to other communications-related equipment (such as bulletin boards, copy machines, public address systems, and telephones), which use an employer can limit for work purposes, misplaced. Given the prevalence of email communication in the workplace, the Board said, this analysis placed too much emphasis on equipment and not enough on an employee’s right to communicate regarding self-organization at the jobsite. According to the Board, electronic communication is effectively a new “natural gathering place” and a forum in which coworkers who share “common interests” will “seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.” Accordingly, the Board found a significant difference between an employer-owned email system and an employer’s brick-and-mortar facility, making Register Guard’s analogy to employer-owned equipment and emphasis on employer property rights incorrect.

    The Board also reasoned that email communication is not a solicitation or a distribution per se. Rather, an email system is merely a forum for communication and the content of the email may constitute a solicitation, distribution, or neither a solicitation nor distribution, but communication that is still protected by the Act. Thus, email systems cannot be characterized as a work or non-work area, but should be considered as mixed-use areas in which work-area restrictions on literature distribution will generally not apply. Thus, the Board ultimately concluded the Register Guard analysis was not appropriate and should be overruled to ensure the Board adapts the “Act to the changing patterns of industrial life.”

    The Board noted its decision in Purple Communications is carefully limited and seeks to accommodate employees’ Section 7 rights to communicate and the legitimate interests of their employers. First, the Board noted the decision 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. Second, an employer may justify a total ban on non-work use of email, including Section 7 use on non-working time, by demonstrating special circumstances making the ban necessary to maintain production or discipline. The Board noted, however, that “it will be the rare case where special circumstances justify a total ban on non-work email use by employees.” Further, where special circumstances do not justify a total ban, employers may still apply uniform and consistently enforced controls when necessary to maintain production and discipline. Third, the Board said, the decision does not address email access by nonemployees, nor does it apply to any other type of electronic communication systems.

    Dissents

    Member Philip Miscimarra dissented from the decision on the grounds that the Board should avoid disrupting long-standing precedent and strive to accommodate any conflict between employer property rights and employee rights to engage in protected activity. The presumption established in Purple Communications, he said, fails to accomplish those goals. Furthermore, he stated that the majority decision’s presumption that limiting email system use constitutes an impediment to self-organization fails to accommodate an employer’s property rights associated with its computer resources, adversely affects other legal requirements imposed by the Act, and replaces an easily understood rule with a restriction unless it is shown unspecified “special circumstances” exist.

    Member Harry Johnson also dissented from the decision, in part, based on his view that email is different than physical space and that the majority decision undermines an employer’s right to own and operate an email network for business purposes. Unlike physical space, email communication is unlimited, can be directed to large audiences regardless of the wishes of some or all of the audience, cannot be separated in terms of working or non-working areas, and is impossible to exit if working on the system. Conversations taking place at the water cooler or in person do not persist beyond the conversations themselves, he explained. Email conversations, on the other hand, are a double-edged sword in relation to productivity because there are no definite bounds in space, time, or audience, which necessarily costs employers money and distracts from the employer’s business.

    Employer Actions

    In response to this decision, all employers should review their electronic communications, bring-your-own-device (BYOD), and social media policies and practices relating to employee usage, particularly where there is a complete ban on personal use. Policies promulgated pursuant to Register Guard that prohibited all personal email usage or personal email usage for Section 7 purposes or email usage during non-working time must be modified. An unlawful policy, even if not enforced, can end up overturning the results of an NLRB election.

    Further, while employers still should reserve the right to monitor email usage, before exercising such right, employers must consider potential NLRB charges based on surveillance if there is known union activity and must be wary of disciplinary actions commencing shortly after learning of union activity through monitoring.

    Of course, the policy review cannot be accomplished in a vacuum and also should include non-NLRA-related considerations, such as the impact of allowing email on non-working time on potential wage-and-hour claims and privacy issues, including the monitoring of the activity itself and use of these communications for disciplinary or litigation purposes.