In a reversal of precedent, a divided National Labor Relations Board (“NLRB”) held yesterday that employees have a right to use their employers’ email systems for non-business purposes, including statutorily protected communications regarding the terms and conditions of their employment and regarding union organizing efforts. See Purple Communications, Inc., 361 NLRB No. 126 (December 11, 2014). The NLRB’s ruling stemmed from a case brought by the Communications Workers of America union after it unsuccessfully attempted to organize employees of Purple Communications, Inc., a company that provides interpreting services for the deaf and hearing-impaired. The union argued that prohibiting the company’s workers from using the company’s email system for non-business purposes and on behalf of organizations not associated with the company interfered with the CWA’s organizing efforts.
Since the NLRB’s 2007 decision in Register Guard, employers were allowed to prohibit employees from using employer-owned email systems for non-work purposes, including activity protected by Section 7 of the National Labor Relations Act. In Purple Communications, the Administrative Law Judge relied on Register Guard and held that the employer could lawfully limit the use of its email systems in that manner. The NLRB, however, expressly overruled the Register Guard decision, and held:
Consistent with the purposes and policies of the act and our obligation to accommodate the competing rights of employers and employees, we decide today that employee use of email for statutorily protected communications on nonworking time must be presumptively permitted by employers who have chosen to give employees access to their email systems.
The Board reasoned that the Register Guard decision placed too much emphasis on employers’ property rights and too little on the importance of email as a means of workplace communication and therefore failed to adequately protect employees’ rights under the Act. The majority limited its decision, noting it applied only to workers who have already been granted access to their employer’s email system, and that employers would still have the opportunity to demonstrate that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.
We will continue monitoring the fallout from this decision, including whether the decision is challenged. At this time, employers are encouraged to review existing communication and email use policies to determine whether they must be rescinded or revised in light of this decision. It is important for employers to make an assessment as to the continuing validity of policies limiting non-business use of email systems, including whether revision to such policies based upon specific business circumstances may insulate a revised policy from challenge under the National Labor Relations Act (NLRA).
- Of Counsel
Caroline Musekamp's practice is concentrated in the area of labor and employment law. Caroline has extensive experience representing clients in employment litigation involving various employment claims, including ...
- Partner
Joe Callow helps clients manage and reduce litigation risk and litigation costs. When litigation arises, he handles and coordinates cases on a national, regional, and local basis.
Joe primarily works on class action and complex ...
Topics/Tags
Select- Labor & Employment Law
- Coronavirus
- Employment Law
- Department of Labor
- Discrimination
- Arbitration
- Labor Law
- Employee Benefits and Executive Compensation
- Religion Discrimination
- Disability Discrimination
- IRS
- NLRB
- Race Discrimination
- Litigation
- Employer Policies
- OSHA
- Americans with Disabilities Act
- Social Media
- Retirement
- Sexual Orientation Discrimination
- Accommodation
- National Labor Relations Act
- National Labor Relations Board
- ERISA
- Employer Handbook
- Employment Litigation
- Reasonable Accommodation
- Wage & Hour
- EEOC
- ACA
- Affordable Car Act
- ADAAA
- NLRA
- Title VII
- Unions
- Employer Rules
- Federal Arbitration Act
- Sexual Harassment
- Technology
- Privacy
- 401(k)
- Transgender Issues
- FMLA
- Workplace Accommodations
- Disability
- Workplace Violence
- Employment Settlement Agreements
- Sixth Circuit
- Equal Employment Opportunity Commission
- Fair Labor Standards Act
- Paycheck Protection Program
- Securities Law
- Preventive Care Benefits
- Health Savings Account
- SECURE Act
- US Department of Labor Employee Benefits Security Administration
- Gender Identity Discrimination
- Posting Requirements
- Class Action Litigation
- Disability Law
- Benefits
- E-Discovery
- Evidence
- Family and Medical Leave Act
- Environmental Law
- Overtime Pay
- Privacy Laws
- Representative Election Regulations
- Department of Justice
- Healthcare Reform
- Older Workers' Benefit Protection Act (OWBPA)
- Electronically Stored Information
- Telecommuting
- Affirmative Action
- Compensable Time
- Equal Opportunity Clause
- Pregnancy Discrimination
- Security Screening
- Supreme Court
- Occupational Safety and Health Administration
- E-Discovery Case Law
- Electronic Data Discovery
- ESI
- Unemployment Insurance Integrity Act
- American Medical Association
- Attendance Policy
- Return to Work
- Seniority Rights
- Classification
- Confidentiality
- Equal Pay
- Fair Minimum Wage
- Federal Minimum Wage
- Genetic Information Discrimination
- Media Policy
- Misclassification
- National Origin Discrimination
- Retaliation
- State Minimum Wage
- Wage Increase
- Disability Leave
- Social Media Content
- Taxation
- Antitrust
- Employment Incentives
- HIRE Act
- Social Security Tax
Recent Posts
- The Practical Employment Law Podcat: Labor & Employment Law Update Week of 1/23/23
- The Practical Employment Law Podcast: The Obligatory New Year's Episode
- The Practical Employment Law Podcast: The Obligatory Holiday Party Episode
- Independent Contractor Classification - Deadline to Submit Comments on the Notice of Proposed Rulemaking is Approaching
- The Practical Employment Law Podcast: Thanksgiving for Plaintiffs' Attorneys
- Why Every Employer Including Those Outside NYC Should Stay Abreast of the NYC Pay Transparency Law
- The Practical Employment Law Podcast: Interview with Author and Lawyer Steven Mitchell Sack
- The Practical Employment Law Podcast: Are You Caught in a TRAP?
- California New Pay Transparency Law
- The Practical Employment Law Podcast: The Controversial Episode