Labor Board ruling has far-reaching impact on employers and workplace policies

published in EmployerLINC Law Alert | December 16, 2014

By Tony Puckett

Late last week, the National Labor Relations Board changed the rules on employee use of the employer’s email systems for labor organizing. The Labor Board’s new rule is that employee use of email for union-related communications on nonworking time must “presumptively” be permitted by employers who allow employees access to the employer’s email systems. In the case, Purple Communications, Inc., 361 NLRB No. 126 (2014), the Board reversed its prior precedent, explaining that it had focused too much on employer property rights and too little on the importance of email as a means of workplace communication.

The Board characterized its new rule as “carefully limited.” First, the Board stated, the new rule applies only to employees who have already been granted access to the employer’s email system in the course of their work. The rule does not require an employer to provide email access to employees. Second, the employer may justify a total ban on non-work use of email, including union-related use on nonworking time, “by demonstrating that special circumstances make the ban necessary to maintain production or discipline.” The Board added, however, that a total ban on email use “will be the rare case.”

Third, even without justification for a total ban, an employer may apply uniform and consistently enforced controls over its email system to the extent necessary to maintain production and discipline. The Board did not provide any examples of the production or discipline interests that would support limited restriction on employee union-related email use. The Board stated only that “an employer contending that special circumstances justify a particular restriction must demonstrate the connection between the interest it asserts and the restriction.” The Board added that employers may continue to monitor their email systems for legitimate management reasons, such as ensuring productivity or preventing activities that could create liability for the employer, such as workplace harassment.

What this rule means for all employers

For all employers – regardless of whether your workplace is unionized or not – it is important to understand the scope of this new rule under Purple Communications. The Board stated the rule means employees have a right to use their work email to engage in “statutorily protected discussions about their terms and conditions of employment while on nonworking time.” This appears to mean that the new rule will allow employees to send each other emails during break time, meal periods or after work, about any issues or complaints they mutually have with their wages, benefits, work schedules, and any other conditions of employment. The Board added that this email right includes “an initial organizational campaign” for a union.

Important next steps for employers

Effective immediately, employers should review their policies on email and computer use for compliance with the Board’s new rule. While tests of the rule’s limits are certain to follow, those who do not comply face possible challenges to their workplace policies, including claims of unfair labor practices, by non-unionized employees and unions alike. Employers should also be on guard to the possibility that this ruling opens the door to additional efforts by the Labor Board to increase union access and make it easier to unionize non-union employers.

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