On December 11, the National Labor Relations Board (NLRB) ruled employees can use their employer's email systems to communicate with each other regarding the terms and conditions of their employment and self-organization. The "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." This ruling overturns 2007 NLRB precedent established by Register Guard, 351 NLRB 110 (2007), enfd. in relevant part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009).
In the decision, Purple Communications, Inc., the NLRB held the "workplace is 'uniquely appropriate' and 'the natural gathering place' for such communications and the use of email as a common form of workplace communication has expanded dramatically in recent years. It went on to state:
In many workplaces, email has effectively become a 'natural gathering place,' pervasively used for employee-to-employee conversations. Neither the fact that email exists in a virtual (rather than physical) space, nor the fact that it allows conversations to multiply and spread more quickly than face-to-face communication, reduces its centrality to employees' discussions about terms and conditions of employment. If anything, email's effectiveness as a mechanism for quickly sharing information and views increases its importance to employee communication.
Limits on the NLRB's Decision
The NLRB limited its holding to employees whose employers have granted them access to the company's email system. Companies may continue to choose not to provide email access to some or all of their employees. Moreover, nonemployees, such as union organizers, still do not have the right to use employers' email systems. The decision places the burden on employers to justify the ban on use of email (to those employees who have company email) for nonworking purposes or during nonworking time by "demonstrating that special circumstances make the ban necessary to maintain production or discipline."
Employers are not prevented from establishing uniform and consistently enforced restrictions on employees' use of their email systems. Such restrictions could include prohibiting attachments of a certain size or audio/video segments. However, the employer must be able to show it instituted these restrictions to protect against interference with the email system's efficient functioning.
The NLRB's New Analytical Framework
Purple Communications, Inc., establishes a new framework for the NLRB to analyze employees' use of company email systems and disavows automatically treating email like the traditional means of in-person solicitation and distribution. The NLRB's long-standing policy regarding solicitation and distribution in the workplace is that employers can ban employees from engaging in solicitation and distribution in the workplace except in nonwork areas and during nonwork time. While email may be a form of solicitation or distribution, it may also constitute communications protected under the National Labor Relations Act (the "Act"). Therefore, "[i]n the vast majority of cases, an employer's email system will amount to a mixed-use area, in which work-area restrictions permitted on literature distribution will not apply."
The decision allows employers to continue to monitor their computers and email systems "for legitimate management reasons, such as ensuring productivity and preventing email use for purposes of harassment or other activities that could give rise to employer liability." However, employers cannot monitor employees' emails to see if they are engaged in union organizing, union activities or other conduct protected by the Act.
Policies and Application
Employers that maintain electronic communications policies that limit employee use of its email system and other electronic systems to "business purposes only" or to "specific purposes" violate the Act.
The decision applies to all cases currently before the NLRB, as well as to all charges and complaints filed in the future.
What Should Employers Do?
Employers should take steps to make sure they are compliant with this holding. Practical tips include:
Patrick McCarthy and Christopher Stracco are scheduled to speak on Friday, February 10, at the New Jersey Institute of Continuing Legal Education's Annual 2017 Redevelopment Law Institute at the Renaissance Woodbridge Hotel in Iselin, New Jersey.
On January 17, John DeSimone and Heather Weine Brochin presented a discussion about employment agreements and negotiation strategies at the NYU School of Medicine.
On October 10, James Bowers will share his personal perspectives on the History of Slavery and Race in South Carolina at UConn School of Law.
Day Pitney Alert
Rachel Gonzalez, Mary Rogers and Patrick McCarthy wrote an article "NLRB Eases Organizing of Temporary Workers" for CBIA’s H&R Safety Newsletter on the impact of the recent decision of the National Labor Relations Board (NLRB).
Michael Furey was quoted in an article, "The Biggest New Jersey Cases of 2016," which was published in Law360.
Michael Furey was quoted in an article, "NJ Panel Grills Hospitals Over Discovery In Horizon Row," in Law360. Day Pitney is representing five New Jersey hospitals in a lawsuit against Horizon Healthcare, relating to its new, multi-tiered health plan called OMNIA. Furey advocated on behalf of the five hospitals on Wednesday before a New Jersey appeals court that Horizon should turn over a consultant's report and certain agreements relating to how Horizon categorized hospitals under its controversial OMNIA Alliance program and the impact of OMNIA on the hospitals. These Tier 2 hospitals are alleging various claims, including breach of contract and citing concerns that being ranked in the lower tier of the program will cost them business. Horizon contends the sought-after materials, including a financial analysis, strategic alliance agreements and rate agreements between the insurer and OMNIA network hospitals, contain trade secret and confidential information. "If we're going to prove our hospitals should be Tier 1 alliance members, we need the documents and the information," Furey said.
Hartford, Conn., May 26, 2016 - Day Pitney LLP is pleased to announce that Employment and Labor attorney Albert Zakarian has been chosen as a Lifetime Achievement winner of The Connecticut Law Tribune’s second annual Professional Excellence Awards 2016. The Professional Excellence Awards 2016 recognize 28 lawyers, who were chosen from over 60 nominees, as either Lawyer of the Year or Lifetime Achievement recipients, according to The Connecticut Law Tribune. The Lifetime Achievement Awards honor "attorneys who have excelled over a career."
John McLafferty was quoted in an article, "Final overtime regulations less drastic than feared," in Massachusetts Lawyers Weekly. In the article, McLafferty discusses how the Department of Labor’s final revised federal overtime regulation will impact businesses. "The reality is that the rule made more people eligible for overtime; it didn’t create any obligation for employers to pay more overtime," he said. McLafferty added that the regulation’s impact on employees could have a wider effect on office culture and policies, which may affect a company’s ability to attract and retain workers. In addition, he noted that employers should take this opportunity to ensure that all of their employees are properly classified for overtime purposes.
Albert Zakarian has been chosen as a winner of The Connecticut Law Tribune's second annual Professional Excellence Awards. The awards recognize two dozen lawyers for outstanding service to the profession during their long careers. The publication received more than 70 nominations. Profiles of awardees will appear in the Law Tribune in May. An event will also be held in May to recognize the winners. More about the awards can be found here.