What Should Employers Do Following the NLRB’s Decision Permitting Employees to Use the Company’s Email to Communicate About Union Organizing or Their Work?

On December 11, 2014, the National Labor Relations Board (“NLRB”) issued its long-awaited decision in Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014).  Purple Communications is a non-union company that had a computer and email policy that limited use of its email for “business purposes only.”  The policy also banned employees from “engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company,” and stated that employees could not send “uninvited email of a personal nature.”  In a highly controversial 3-2 decision, the Board majority concluded:  “we decide today that employee use of email for statutorily protected communications on non-working time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”

Much has been already been written about this case.  As I write this in late January, it is unclear whether this decision will be appealed or will ultimately stand. In addition, there are other important questions that were not addressed in the decision.  We will continue to monitor developments and will post updates periodically. There is no question, however, that this decision reflects the current pro-union sentiment of the NLRB majority.

This article is not exhaustive.  For now, I will provide you with some additional information to help Virginia employers understand the decision and potential implications.  Here are the primary practice points:

1. The decision applies only to non-management employees who have “already been granted access to the employer’s e-mail system in the course of their work.”  Thus, if an employer does not already provide email access to certain employees or groups of employees, it does not have any obligation to provide them access now.
2. As noted above, employees who have been permitted to use email for non-work communications are permitted to use email to communicate with co-workers about terms and conditions of employment and union-related matters.
3. Do you have a non-solicitation policy in your handbook?  If so and consistent with that policy, an employer may prohibit an employee from email solicitation of another employee during the working time of either employee.
4. An employer may continue to apply uniform and consistently-enforced controls over its email system that may be necessary to maintain production and discipline.  In other words, employers may continue to monitor emails for “legitimate business reasons.”
5. Conversely, however, employers cannot target or discriminate against employees who use the company’s email system to exercise their Section 7 rights.  In other words, if an employer has never reviewed its employees’ email accounts, it runs a risk of a disparate treatment unfair labor charge if it then reviews an employee’s email account and disciplines him after it learns that he has posted union-related emails or sent an email to employees relating to the terms and conditions of employment (e.g., criticized a company policy, manager or action).
6. An employer can still restrict third parties from gaining access to the company’s email system.  It would be best if such a restriction is memorialized and enforced.
7. An employer will likely not be able to ban “all non-business use” of company email.  The Board expressed its skepticism that an employer would be able to demonstrate “special circumstances” that would allow for a total ban of non-work email.
8. If a company email policy bans “solicitation” on behalf of other business, religious groups, or outside organizations, such a ban would likely be found unlawful.
9. Employers should review their email use policies with their employment counsel.  The Board found that employees have the right to use corporate email for section 7 activity during “nonworking time.”  Will an employer be able to distinguish working and non-working time?  What other safeguards, if any, can an employer implement?  When should an employer monitor employee email communications and what should an employer say in its policies?  These are all questions employers will need to understand in light of this decision.
10. This decision cannot be considered in a vacuum.  The NLRB has enacted other pro-union initiatives and decisions including the “quickie election” rules scheduled to take effect April 14.  Any employer who wishes to remain union-free or avoid unfair labor practices must become familiar with the new NLRB landscape.

Employers are urged to contact their employment counsel if there are questions or concerns as to the NLRB’s decision and the potential impact for the company’s operations.  Please contact Todd Leeson at Gentry Locke, www.gentrylocke.com/leeson, if we can help your company with its policies or if we can help you remain union-free.