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:
On August 15, Michael Dell will present a live webinar, "Top 10 Ways Supervisors and Managers Create Legal Risks for Your Workplace Under Federal Law," sponsored by BLR.
On July 11, partner Francine Esposito will present a live webinar, "FMLA Leave Is Exhausted: How to Address Transfer and ADA Accommodation Requests, Fitness-for-Duty Exams, and More," sponsored by BLR.
Heather Weine Brochin and Theresa Kelly authored Employee Privacy Laws: New Jersey, a Q&A guide published by Thomson Reuters Practical Law.
Theresa Kelly and Alba Aviles authored an article, "The Weighty Matter of Obesity in the Workplace," which was published in the May 2019 edition of Employee Benefit Plan Review.
On May 31, Francine Esposito will serve as the moderator and speak on a multi-national panel of attorneys on the topic of "Unions in the Workplace," at the 2019 Lex Mundi Labor and Employee and Employee Benefits and Pension Joint Practice Group Global Meeting in Boston.
Day Pitney Press Release
Gary Betensky and Michael Napoleone were featured in a profile, "Day Pitney LLP: Firm Expands to Better Serve South Florida Clients," published in the March issue of The Boca Raton Observer magazine.
Day Pitney associate Arianna Mouré was featured in an article, "Practicing Law and Contributing to the Greater Good," published in the Fall/Winter 2018 edition of the Rutgers University School of Arts and Sciences Access Newsletter.
Heather Weine Brochin was quoted in an article, "Confidentiality Disqualifies Harassment Settlement Tax Deductions," published on the Society for Human Resource Management (SHRM) website.