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By: W. Steven Nichols
Christian & Small LLP
Birmingham, Alabama

Does your company have a policy similar to the following?

“Email is the sole and exclusive property of the Company, and should be used for business purposes only. Employees are prohibited from using the email system in connection with engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company, and from sending uninvited email of a personal nature.”

If so, according to the National Labor Relations Board (NLRB), you are in violation of federal law.

Recently, the NLRB issued a decision involving a company’s internal email policy. Purple Communications provides sign-language interpretation services; its employees are interpreters who, operating out of 16 call centers, provide two-way, real-time interpretation of telephone communications between deaf and hearing individuals. Interpreters are assigned individual email accounts on its email system, and they use those accounts every day that they are at work.  Purple Communications’ handbook contains the above-quoted email policy.

A Purple Communications employee sent out several emails related to an on-going organizational campaign by a union. The company disciplined the employee for violation of the policy. The union and the employee challenged the disciplinary actions as unlawful under the National Labor Relations Act. Reversing a decision reached only seven years ago, the NLRB agreed with the union and employee:

“We will presume that employees who have rightful access to their employer’s email system in the course of their work have a right to use the email system to engage in Section 7-protected communications on non-working time.”

“An employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights. Because limitations on employee communication should be no more restrictive than necessary to protect the employer’s interests, we anticipate that it will be the rare case where special circumstances justify a total ban on non-work email use by employees.

It has long been the law that employers could have blanket prohibitions of employees using employer-owned communication systems for solicitation purposes, provided that the prohibition was not selectively enforced against communications related to unions. If employees can send emails about church raffles and garage sales, they can send emails about unions. However, an absolute and uniformly enforced prohibition was lawful. No more. For the first time, if an employer allows employees ANY general access to internal email systems, the employees have the RIGHT to use the system for purposes of soliciting support for a union. Significantly, the NLRB held that its new decision applies retroactively (i.e., to employers’ existing polices).

“Well, my company is not unionized and a union is not attempting to organize our employees – so why do I care?” Because the National Labor Relations Act does not just apply to unions.  The NLRA governs the relationships between employers and employees without regard to union involvement.

All employees covered by the NLRA, union members or not, have the right “to engage in, or refrain from engaging in, concerted activity for the purpose of collective bargaining or other mutual aid and protection.”

“Concerted activities” include communications related to the terms, conditions and privileges of employment motivated by employees’ collective interests as opposed to the interests of a single employee. Terms and conditions include compensation, benefits, promotions, disciplinary actions, working conditions, hours of work, overtime, safety, equipment, and employment policies. Even harsh criticism of management, supervisors or other employees can be concerted activity. In other words, the NLRB has given employees virtually the unfettered right to use a company’s internal email system to solicit support for what a single employee considers a common cause or to complain about any aspect of the employment relationship.

There is good news, however. For now:

  • The NLRB limited its ruling to just internal email systems.
  • The decision does not require an employer to grant employees access to its email system where it has not chosen to do so.
  • The decision encompasses email use by employees only; it does not give non-employees rights to access an employer’s email system.
  • The decision did not alter the law that an employer can prohibit an employee’s personal use of internal email systems during working time provided that such a prohibition is uniformly enforced. (Working does not equate to shift hours. “Working time” is the period that an employee is actually expected to be performing work. For example, recognized breaks are not “working time.”)
  • An employer is allowed to establish uniform and consistently enforced restrictions, 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 prevent employers from continuing 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.

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