By Henry W. Sledz, Jr.
Yesterday, the National Labor Relations Board, by a 3-2 majority, reversed its 2007 decision in Register Guard, 351 NLRB 1110, which had held that employees had no statutory right to use their employer’s email systems for communications protected by Section 7 of the National Labor Relations Act. Purple Communications, Inc. and Communications Workers of America, AFL-CIO, 361 NLRB No. 126. Examples of protected communications would include discussions among employees about unionization as well as discussions about the employees' wage, benefits or other terms and conditions of employment. This decision will have a major impact on employers' email policies, regardless of whether such employer is unionized or union-free.
The employer in Purple Communications maintained an email policy which, in pertinent part, stated that the company's email system should be used for business purposes only. It further provided that employees were strictly prohibited from "...engaging in activities on behalf of organizations or persons with no professional or business affiliations with the Company" and from "sending uninvited email of a personal nature." Under the Board's prior Register Guard decision, this policy was lawful.
In yesterday's decision, the Board majority stated that Register Guard focused too much on employer property rights and too little on the importance of email as a means of communication in the workplace, thereby failing to protect employees' rights under the Act. Thus, it held that "...employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems."
In the majority's view, it's decision was carefully limited. First, it noted that the decision only applies to employers who have granted employee access to their email system, and does not mandate that employers grant such access. Second, the Board indicated that an employer could place a total ban on non-work use of email but only by demonstrating that actual (not perceived) special circumstances justify the ban. Finally, the Board indicated that absent a justification for such a total ban, an employer could still apply uniform and consistently applied non-discriminatory control over email usage to the extent such controls were necessary to maintain production and discipline. But the Board made it clear that the burden would be on the employer to prove that any such restrictions on email usage were necessary.
The Board's decision permitting access to the employer's email system for protected communications is limited to non-work time. Even under this decision, an employer may still place restrictions on personal email usage during working time.
This decision only addresses employee access to an employer's email system. It does not grant access rights to nonemployees such as union organizers or representatives. Additionally, the decision only applies to email access. It does not address website usage or access to other electronic communication systems such as telephone systems.
One of many concerns with this decision is its impact on an employer's right to monitor employee emails on the employer's system. The Board indicated that its decision does not restrict an employer's right to notify its employees that it will monitor communications on its email system and that employees may have no expectation of privacy in their use of the employer's email system. The Board further noted that the monitoring of emails by an employer would be lawful so long as the employer did not do anything out of the ordinary, such as increasing the level of monitoring during a union organizational drive or focusing its attention on known union activists or otherwise protected communications.
Strong dissents were filed by Members Miscimarra and Johnson. Both argued, among other things, that the majority's decision did not adequately consider an employer's property rights in its own email systems, and that employees already have many other alternative ways (such as social media) to communicate about wages, benefits and other working conditions.
As a result of this decision, employers are encouraged to review their email usage policies and make any necessary changes to comply with this decision. In addition, careful review of the legal implications should be undertaken prior to engaging in disciplinary action against an employee for non-work use of email.
For further information about this decision, please contact any member of Schiff Hardin's Labor and Employment Group.
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Schiff Hardin represents management in employment-related litigation and labor matters, and provides counsel to employers with respect to all legal aspects of employer-employee relations. Our firm's labor law practice encompasses both the private sector and the public sector for large and small employers in a broad range of markets and industries. Schiff Hardin is proudly celebrating its 150th anniversary in 2014.
Schiff Hardin represents clients in complex, multi-party litigation, including class actions under Title VII and various state anti-discrimination laws; and collective and class actions under both federal and state wage and hour laws. We regularly counsel clients in helping them comply with federal and state laws governing all aspects of the employment relationship. We offer both standardized training modules and training programs that are individually tailored to the client's needs and requests.