Whose Email Is It Anyway? A Recent Decision By The National Labor Relations Board Creates A Presumption Allowing Employees To Use The Employer’s Email System On Non-Working Time To Communicate With Other Employees About The Terms And Conditions Of Their Employment
In a decision issued on December 11, 2014, the National Labor Relations Board overruled an earlier decision and held that where an employer has chosen to give its employees access to the employer’s email system, employees can use the employer’s email on non-working time to engage in communications that are protected by Section 7 of the National Labor Relations Act, including communicating about union organizing. Prior to this ruling, employees did not have a right to use their employer’s email system for Section 7 purposes, as held by the Board in its 2007 decision, Register Guard, 351 NLRB 1110 (2007).
In this most recent decision, Purple Communications, Inc. and Communications Workers of America, AFL-CIO, Case Nos. 21-CA-095151 and 22-RC-091584, the Board found that its decision in Register Guard was incorrect. The Board noted that “[t]here is little dispute that email has become a critical means of communication, about both work-related and other issues, in a wide range of employment settings.” The Board found that the employee’s right under Section 7 of the National Labor Relations Act to organize and bargain collectively “necessarily encompasses the right to effectively communicate with one another regarding self-organization at the jobsite.”
The purpose and policy of the National Labor Relations Act is to accommodate the competing rights of employers and employees and the Board acknowledged that it must take into account the employer’s legitimate interest in managing its business. However, the Board found unpersuasive the employer’s argument that an email message sent using the employer’s email system could be perceived as coming from the employer. According to the Board, it would be apparent that an email is from the employee not the employer, and any concern regarding who an email is from could be remedied by the employer disassociating itself from the viewpoints contained in the message.
The effect of the Board’s recent decision is to create a presumption that an employer who has granted access to the employer’s email system to an employee for work purposes must also allow access to the email system for Section 7 purposes on non-working time. An employer may rebut the presumption by showing that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights; however, such restrictions should be no more restrictive than necessary to protect the employer’s interests. According to the Purple Communications decision, it will be a rare case where a total ban on non-work email is justified. Employers can, however, apply uniform and consistently enforced controls over their email systems to the extent those controls are necessary to maintain production and discipline. The mere assertion of an interest in a restriction that is theoretical is not enough to satisfy the employer’s burden. One example of a permissible restriction given by the Board is restricting employees from sending large attachments or audio/video files, if the employer can demonstrate that such would interfere with the email system’s efficient functioning.
An employer can monitor the electronic communications on its email system as long as the employer does nothing out of the ordinary, including but not limited to increasing it’s monitoring during an organizational campaign or focusing its monitoring efforts on protected conduct or union activities. The Purple Communications decision does not affect the employer’s ability to continue to monitor its computers and email for legitimate management purposes.
This new rule applies not just prospectively, but retroactively unless doing so would work a manifest injustice. What that means is that employers could find themselves liable for policies and practices that the NLRB previously sanctioned. If an employer’s policy regarding email for Section 7 purposes is found unlawful then the employee could be entitled to back pay or reinstatement, depending on the facts of the case.
Employers should review their electronic communications policy in light of this recent shift by the NLRB.
The information presented in this article is intended for general educational purposes. It is not intended to be legal advice. Every company or person’s situation is different and requires individual analysis by competent counsel before legal advice can be rendered. If you are confronted by a legal issue retain competent legal counsel to advise you immediately. This article is not a substitute for legal advice from an attorney licensed to practice in your jurisdiction.