January 28, 2015 Practice Points

NLRB: Employees May Use Employer Email for Nonwork Purposes

The board also expanded the right to wear union insignia.

By Gerard Morales

Reversing well-established precedent, on December 11, 2014, the National Labor Relations Board (NLRB) held that employees that have been given access to their employers’ email systems, must be permitted to use those systems for “protected communications” that is, communications that are related to union and other concerted activities, during nonworking time. Purple Commc’ns, Inc. 361 NLRB No. 126 (Dec. 11, 2014). This decision is a radical departure from the existing law that had recognized and protected employers’ property rights.

In its decision, the NLRB distinguishes email systems from other employer communication systems, such as bulletin boards, copy machines, public-address systems, and telephone systems on the basis that email systems function “as an ongoing and interactive means of employee communication in a way that other older types of equipment clearly cannot.”

The board notes that its decision is limited in the following ways:

1. It is limited to email systems and does not apply to other electronic communication systems.

2. It applies only to employees who have been given access to the employers’ email systems and does not require the employer to give such access to other employees.

3. It does not apply to nonemployees.

4. The employees’ right to use the email systems for non-work related purposes is limited to nonworking time.

5. Employers are free to establish uniform and consistently enforced restrictions, such as prohibiting large attachments or audio/video segments, “if the employer can demonstrate that such [attachments or segments] would interfere with the email system’s efficient functioning.”

6. Employers may continue to monitor their email systems for legitimate reasons, such as ensuring productivity and preventing use for harassment or other activities that could render the employer liable.

7. Employers may ban all non-work use of email—including protected communications during nonworking time—by demonstrating special circumstances that make the ban necessary to maintain production or discipline.

In another case, also dealing with employees’ communications rights in the work place, on December 9, 2014, an NLRB administrative-law judge (ALJ) held that an employer policy that imposed certain restrictions on its employees’ display of logos or other insignia on their clothing was unlawful, even though the policy permitted wearing logos and insignia “allowed under federal of state law.” Wal-Mart Stores, Inc. JD-69-14 (Dec. 9, 2014). The ALJ based the decision on the precedent that “an employer may not validate an overbroad work rule by placing the burden on employees to determine their legal rights.” Trailmobile 221 NLRB 1088 (1975).

The above cases will likely be appealed. Some believe that federal courts of appeal will reverse the board decision requiring employers to permit employees’ use of its email systems for non-work purposes.

However, employers may wish to be aware that, unless reversed, the decision is current NLRB law, meaning noncompliance may involve substantial risks and protracted litigation.

Gerard Morales, Snell & Wilmer L.L.P, Phoenix, AZ

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