As expected,
the NLRB last week overruled its December 2007 decision in Register-Guard
which had given more weight to an employer’s private property rights to manage
its own email system than to employees’ need to communicate among
themselves. In Purple Communications, Inc., 361 NLRB No. 126 (2014), another divided Board addressed
this issue (which it bypassed in September) and 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.” (emphasis added). Although
this decision will apply to union and non-union employers, it does not create
an unrestricted right. Employers are
not required to provide email access to employees who do not already have
access to the employer’s email system in the course of their work. In addition, employers may still under “special
circumstances” ban total nonworking use of email, “including section 7 use on
nonworking time,” in order “to maintain production or discipline.” Moreover, employers “may apply uniform and consistently
enforced controls over its email system to the extent such controls are
necessary to maintain production and discipline.” This would include, for instance, banning
large attachments and permitting employer monitoring of email usage. Finally, nonemployees do not “have rights to
access an employer’s email system.”
Interestingly, the Board reserved for another time the rights of employees to
utilize “other type[s] of electronic communications systems.” Importantly for all employers, this decision
will require another revision to common workplace email policies.
The NLRB has
previously taken the position that email communication among employees (or with
union organizers) can constitute protected “concerted activity.”
Employees had a statutory right under Section 7 of the NLRA to engage in
concerted activities, which means that employers could not prohibit it or
discipline an employee for engaging in such conduct. However, in
2007, the NLRB narrowed
an employee’s right to use an employer’s email system for union and other
section 7 activities. The Guard Publishing
Company, d/b/a The Register-Guard, 351 NLRB 1110 (12/16/07). The NLRB’s
majority concluded that that a newspaper publisher employer did not violate
§8(a)(1) of the National Labor Relations Act by maintaining a broad policy
which prohibited employees from using its e-mail system for any
“non-job-related solicitations.” The Board analogized email to other
employer equipment, such as telephones. The Court of Appeals for the District of
Columbia later narrowed the ruling when it held in 2009 that the employer still
could not discriminate against union solicitation by permitting other personal
non-work related solicitation emails, but disciplined the union president for
sending union-related solicitation emails. It was anticipated that
the current NLRB would revisit and – to be consistent with the General
Counsel’s views on other social media --
reverse the Register-Guard decision. However, in September it ignored
the issue in Purple Communications,
Inc., 361 NLRB No. 43
(2014), even though the NLRB General Counsel invited the Board to overrule Register-Guard.
Nonetheless, last week, the NLRB revisited the issue and, as expected, ultimately
overruled Register Guard.
According
to the Board’s decision, the employer maintained a lawful “electronic
communications policy limiting employee use of its email and other electronic
systems [including computers, voice mail, cell phones and other equipment] to “business
purposes only” and “specifically prohibit[ing]” certain uses by employees,” including:
2. Engaging in
activities on behalf of organizations or persons with no professional or
business affiliation with the Company.
. . . .
5. Sending uninvited
email of a personal nature.
Although there was no allegation that the employer had
unlawfully enforced this policy against any employees, the NLRB’s General
Counsel invited the Board to overrule Register-Guard
in order to make this lawful policy unlawful. The Board then invited amicus briefs from the
employer and union communities on the issue, reversed Register-Guard, applied the decision retroactively and remanded the
case for a determination whether the employer could rebut the new lawful presumption. As the
Board noted, the employer at worse would only be required to rescind its policy
and so notify employees; it would not be subject to back pay liability or
reinstatement obligations.
After briefing, the Board adopted “a presumption that employees
who have been given access to the employer’s email system in the course of
their work are entitled to use the system to engage in statutorily protected discussions
about their terms and conditions of employment while on nonworking time, absent
a showing by the employer of special circumstances that justify specific
restrictions.” The Board rejected the argument
that social media,
texting, and personal email accounts constitute adequate alternative means for
employee communications. Even if we agreed that alternative means were germane
to the analysis here—which, as discussed below, we do not— the Respondent and
amici here have not shown that our presumption would impinge more than
minimally upon employers’ property rights, and therefore there is no need to go
any further in accommodating them. In any event, we would not agree that such
personal communication options are adequate, in light of the high value our
precedents place on communication in the workplace.
As for the “special circumstances” which could justify limits on
employee use of email, the employer bears the burden of articulating “the
interest at issue” and showing “how that interest supports the email use
restrictions it has implemented.”
Because limitations on
employee communication should be no more restrictive than necessary to protect
the employer’s interests, we anticipate that it will be the rare case where
special circumstances justify a total ban on nonwork email use by employees. In
more typical cases, where special circumstances do not justify a total ban,
employers may nonetheless apply uniform and consistently enforced controls over
their email systems to the extent that such controls are necessary to maintain
production and discipline.
By way of
example, the Board observed that “[a]n employer’s interests in protecting
its email system . . . from damage or
from overloads due to excessive use, would of course be relevant” to showing “special
circumstances.” The argument would be
strengthened if the employer could show that “it adopted the restriction in
order to protect the interests it asserts, instead of just citing certain
interests, post hoc, to support a restriction that was not actually based on
them.” Moreover, an employer’s interests generally “will
establish special circumstances only to the extent that those interests are not
similarly affected by employee email use that the employer has authorized.” However,
it rejected “[t]he prior existence of an employer prohibition on employees’ use
of email for nonwork purposes.”
As for permitted restrictions on employee use of email, the
Board noted that an employer could establish “uniform and consistently enforced
restrictions, such as prohibiting large attachments or audio/ video segments,
if the employer can demonstrate that they would interfere with the email system’s
efficient functioning.”
employers who choose
to impose a working-time limitation will have concerns about the extent to
which they may monitor employees’ email use to enforce that limitation. Our
decision does not prevent employers from continuing, as many already do, 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.
Of course, employer surveillance of employee’s section 7
activities can violate the NLRA, but the Board responded that it would address
such “surveillance allegations by the same standards that we apply to alleged surveillance
in the bricks-and-mortar world.”
“those who choose
openly to engage in union activities at or near the employer’s premises cannot
be heard to complain when management observes them. The Board has long held
that management officials may observe public union activity without violating the
Act so long as those officials do not ‘do something out of the ordinary.’” An
employer’s monitoring of electronic communications on its email system will
similarly be lawful so long as the employer does nothing out of the ordinary,
such as increasing its monitoring during an organizational campaign or focusing
its monitoring efforts on protected conduct or union activists. Nor is an employer
ordinarily prevented from notifying its employees, as many employers also do already,
that it monitors (or reserves the right to monitor) computer and email use for
legitimate management reasons and that employees
may have no expectation of privacy in their use of the employer’s email system.
Apparently oblivious
to a standard liability problem facing many employers from personal use of an
employer’s email address – where the recipient – who may not be a co-worker -- does
not always know the sender’s rank in the organization, the Board rejected
concerns about the employers’ First Amendment and other rights:
We are simply
unpersuaded that an email message, sent using the employer’s email system but
not from the employer, could reasonably be perceived as speech by, or speech
endorsed by, the employer— particularly
a message reflecting a view different from the employer’s. Email users
typically understand that an email message conveys the views of the sender, not those of the email account provider.
They would no more think that an email message sent from a coworker via a work
email account speaks for the employer (unless the message was sent by the
employer’s supervisor or agent) than they would think that a message they
receive from a friend on their personal Gmail account speaks for Google.
There were two lengthy
dissents.
NOTICE:
This summary is designed merely to inform and alert you of recent legal
developments. It does not constitute legal advice and does not apply to any
particular situation because different facts could lead to different results.
Information here can change or be amended without notice. Readers should not
act upon this information without legal advice. If you have any questions about
anything you have read, you should consult with or retain an employment
attorney.
