Working Together

The National Labor Relations Board (NLRB) recently affirmed its 2014 decision in Purple Communications, Inc. and Communications Workers of America, AFL–CIO which held that if employees are granted access to their employer’s email system for work-related purposes, they are presumed to have a right to use that email system on non-working time for communications that are protected by the National Labor Relations Act (NLRA), unless the employer demonstrates special circumstances.

This decision serves as an important reminder to employers to take the time to understand the implications of the NLRB’s position and, if necessary, revise their workplace policies to comply with this ruling.

Isn’t the NLRB Only Concerned with Union Activity?
No. While the employees in Purple Communications were unionized, the NLRA covers most employees in the private sector, with or without a union. Exceptions include government employees, independent contractors and supervisors (though, in some cases, supervisors who have been discriminated against for refusing to violate the NLRA may be protected).
Under Section 7 of the NLRA, covered employees are afforded the right to engage in “concerted activity,” which is when two or more employees take action for their mutual aid or protection regarding the terms and conditions of their employment. For example, Section 7 protects employees who discuss workplace safety concerns with each other or who address their employer about improving their pay. Even a single employee can engage in protected concerted activity such as when he or she acts on the authority of other employees or brings a group complaint to the employer’s attention. Section 8 of the NLRA prohibits employers from interfering with, restraining or coercing employees in the exercise of their Section 7 rights.

How Did Purple Communications, Inc. Violate the NLRA?
Purple Communications, Inc. maintained a few shared computers in common areas of the workplace from which employees were able to access the Internet. The company’s employee handbook provided that employees could use the company’s email system (as well as its voicemail, Blackberry, cell phones and other company equipment) for business purposes only. “Prohibited activities” included using company equipment to engage in activities on behalf of organizations or persons with no professional or business affiliation with the company or sending uninvited email of a personal nature. The company testified that the restrictions were put in place to protect against computer viruses, the transmission of inappropriate information and the release of confidential company information.

The NLRB found that the handbook policy presumptively interfered with the employees’ Section 7 rights because it was drafted so broadly as to encompass the use of the company’s email system for concerted activities during nonworking time. The presumption was rebuttable if the company could show that the restrictions were justified by “special circumstances,” but the company did not offer any special circumstances, and the concerns it raised about viruses and inappropriate and confidential communications were found to be generic in nature and no different from the concerns of employers in general.

What Types of Policies Can Employers Enforce in Light of Purple Communications?
While broad prohibitions on employee use of company-owned email during non-work time will not pass muster under the NLRA absent special circumstances, employers can, and should, implement policies that impose legally-permissible restrictions on the use of company email for such actions as the disclosure of trade secrets, internal business communications and similar confidential company information and the dissemination of messages that incite violence or involve illegal conduct.

And as the NLRB noted, employers are also generally free to monitor their employees’ use of the company email system for legitimate management reasons, which might include ensuring productivity and preventing harassment and other activities that could give rise to employer liability. The NLRB warned that employers may not, however, conduct email monitoring in response to Section 7 activity, focus their monitoring efforts only on union activists or otherwise violate the NLRA. State law may also come into play. For example, Connecticut employers who engage in electronic monitoring are required to give their affected employees prior written notice of the types of monitoring that may occur, except in certain limited circumstances (Conn. Gen. Stat. §31-48d).

Looking Ahead
The NLRB limited its ruling to email communications, though in its earlier decision it conceded that other interactive electronic communications, such as instant messaging and texting, may ultimately be subject to a similar analysis. The dissent in both the 2014 and 2017 decisions argued that employers should have the right to control not just their email systems, but their information technology equipment and resources generally, so long as the employer does not discriminate against NLRA-protected communications. Earlier this week, President Trump appointed the author of these dissents to the post of NLRB Chairman. Additional changes to composition of the NLRB board are expected as two of the five board member seats are currently vacant. What this means for the future of Purple Communications is unclear, but for now, employers must refrain from implementing broadly-worded email policies that could be interpreted as restrictions on their employees’ Section 7 rights.

The 2017 decision may be found here.