Breaking – NLRB Rules Employer E-mail Systems Fair Game for Union Organizing Breaking – NLRB Rules Employer E-mail Systems Fair Game for Union Organizing

Breaking – NLRB Rules Employer E-mail Systems Fair Game for Union Organizing

In a 3-2 decision issued today, the National Labor Relations Board (NLRB or the Board) held that employers who allow employees access to company email systems must generally allow nonbusiness communications, including for statutorily protected activities such as union organizing, during nonworking time.   In doing so, the Board overruled its own 2007 decision in Register Guard, stating that, “By focusing too much on employers’ property rights and too little on the importance of email as a means of workplace communication, the Board failed [in Register Guard] to adequately protect employees’ rights under the Act and abdicated its responsibility “to adapt the Act to the changing patterns of industrial life.”  As the National Labor Relations Act covers nearly all private employers, whether unionized or not, the impact of this ruling on employer practices and policies is significant.  
The decision did provide some, albeit limited, boundaries on this new organizing right:
1.  It applies only to employees who already have been granted access to an employer’s email systems, and does not require employers to prospectively grant such access; 
2.  As with the Board’s longstanding precedent concerning solicitation/distribution policies, an employer may still prohibit the use of email for solicitation or other nonbusiness purposes during working time;
3.  An employer may be able to justify a complete ban on nonbusiness use, even during nonworking time, be demonstrating the existence of “special circumstances”; however, this is expected to be a “rare case”; and 
4.  An employer may still apply “uniform and consistently enforced controls to the extent such controls are necessary to maintain production and discipline,” such as 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.”
The decision does not address communication systems beyond email and it does not find that nonemployees, such as professional union organizers, have a right of access to employer email systems.  The holding also “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.  Allegations of improper surveillance will be analyzed in the same way as in the “bricks-and-mortar world.”
Significantly, the Board applied its new policy retroactively; meaning that it was applied directly to the facts in this case and will be applied to all similar cases pending before the Board in any stage.  Of course, all other employers covered by the Act are also immediately responsible for compliance.
Given the near-universal application and ramifications of the decision, it is likely to be appealed.  However, absent an injunction to bar immediate enforcement, employers are strongly advised to review any applicable policies and to consult with legal counsel before undertaking any adverse action against employees for a violation of those policies.  We will be monitoring the developments associated with the case on an ongoing basis.
For further information about this decision or the National Labor Relations Act, you may contact Ryan Poor, Partner, or Paul Sinclair, Partner, Ice Miller LLP.
The full opinion, Purple Communications, Inc., 361 NLRB No. 126 (12/11/14), can be accessed here.
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