Last week the National Labor Relations Board (“NLRB” or the “Board”) issued a much anticipated decision involving employees’ use of their employers’ e-mail. The ruling reverses a seven-year-old decision from the Board that allowed employers to limit electronic communication on their equipment. The decision has immediate implications for employers’ policies on the subject.
Section 7 of the National Labor Relations Act (“NLRA”) protects an employee’s right to engage in “protected concerted activity,” or in other words, the right for employees to communicate and act together to improve their working conditions. Section 8(a)(1) of the NLRA prohibits employers from interfering with employees’ Section 7 rights.
In 2007, the Board ruled that employers could prohibit employees from using their internal e-mail systems for Section 7 activity, including any personal communication. However, last week, in Purple Communications, the NLRB reversed course and opened up the use of work e-mail for “protected concerted activity.”
Purple Communications Inc.’s Policy
Purple Communication Inc. (“Purple” or the “Company”), had an employee policy that prohibited workers from using company communications equipment, including company e-mail, to send personal e-mails or engage in activities on behalf of outside organizations (including labor unions). The union attempting to organize Purple’s employees filed an unfair labor practice charge with the NLRB. The union cited this policy in particular, claiming that it interfered with the employees’ rights to communicate with each other and their freedom of choice in the pending union election.
The Board’s “Limited” Decision
The NLRB held that Purple’s policy interfered with the employees’ Section 7 rights and explained that employees who have permission to use their employers’ e-mail systems can use these systems on their own time for organizing and communication purposes.
The Board “limited” the decision by allowing employers to prohibit non-work use of their e-mail system, if an employer can demonstrate special circumstances that justify the restrictions, such as the need to maintain production or discipline. However, to rationalize a particular restriction, the employer is required to identify a specific interest and explain how the restriction protects that interest.
The decision reflects the need for employers to check their electronic communications and work e-mail policies, so that they do not prohibit employees from conversing about possible union circumstances during non-work time. The decision also signals to employers that the scope of the rule may expand to smart phones used for work, and communication platforms such as social media and text messaging.