By Stephen R. McCutcheon, Jr.
December 12, 2014
I previously wrote about the systematic effort of the National Labor Relations Board (NLRB) and its General Counsel Richard Griffin to overturn long-standing precedent that provided certainty and balance regarding labor issues in the workplace, and that one of the targets was the President Bush-era decision in Register Guard, 351 NLRB 1110 (2007) which held that employees do not have a statutory right to use their employer’s e-mail systems to facilitate union organizing.
A majority of the Board in Purple Communications of America, 361 NLRB 126 (2014) has overruled Register Guard and ruled that employees have the right to use their employer’s e-mail systems for organizational campaigns and other activities protected under the National Labor Relations Act (NLRA). Under the ruling, employee use of company e-mail systems on nonworking time for communications protected by Section 7 of the NLRA is presumptively permitted. An employer may be able to justify a total ban of non-work use of e-mail by demonstrating special circumstances, or special needs regarding production and discipline, but the employer will have a difficult challenge in meeting this standard, and labor counsel should be consulted before adoption or enforcement of restrictions on the use of e-mail systems.
For the immediate future, employers who have employee handbook provisions or other policies prohibiting non-business-related e-mail, or the use of company e-mail for personal purposes, will need to revisit the policy in light of the majority’s decision. However, the ramifications of the decision are going to extend beyond simple revisions of handbook policies.
For the long term, this “thumb on the scale” approach to decisionmaking by the NLRB continues to be troubling, and creates great uncertainty for employers, employees, and labor unions as the board is upending long standing decisions that provided a measure of stability and predictability to labor matters.
With its Purple Communications decision, the Board seems to have lost sight of the purpose and scope of the National Labor Relations Act (NLRA). The NLRA protects the right of employees to engage in concerted activities for the purpose of collective bargaining or mutual aid or protection, and makes it unlawful for an employer to “interfere with, restrain, or coerce employees in the exercise of those rights. A majority of the National Labor Relations Board has turned this carefully crafted balance on its head, and now will require employers to not only refrain from interfering with the protected concerted activities of employees, but facilitate those activities.
While the long term ramifications are unknown, one certainty is that the reversal of Register Guard in Purple Communications will result in more conflict. Although the ruling is purportedly limited to requiring allowance employee use of e-mail on non-working time for those employees already provided with access, we all know that with computers and smartphones, this limitation is illusory, and that the senders, recipients, or both, will be communicating on working time.
Due to the prevalence of class actions alleging off-the-clock work, many employers have taken to eliminating e-mail access during non-business hours to prevent claims that employees are entitled to compensation for working via e-mail while off-the-clock. It is unknown whether the NLRB will view such restrictions as appropriate, given that employees now have the right to use the system for organizing activities on non-working time.
Another area of expected conflict is with employer access to messages and monitoring of employee use of e-mail systems. Nearly all employers notify employees that they have no expectation of privacy in their use of company e-mail, and that the employer may access their communications. Employers often monitor e-mail systems for legitimate reasons, including productivity, the prevention and remedying of harassment, and responding to demands in litigation. It takes little imagination to envision that employees terminated for legitimate business reasons will claim that they were terminated for having sent a protected e-mail on the company system – whether or not the employer actually reviewed or was aware of the message.
The Purple Communications decision creates a more fundamental conflict under the NLRA – employers are prohibited from surveillance of protected employee activity. It is unclear how an employer can determine whether there has been abuse of the e-mail system, such as sending solicitations on working time, without reviewing what could be protected communications. The majority’s reasoning that an employer would be safe from a charge of surveillance if it “does nothing out of the ordinary, such as increasing its monitoring during an organizational campaign or focusing its monitoring efforts on protected conduct or union activists” is nonsensical as that is precisely when the abuses of the employer’s e-mail system, and sending of organizational messages and union solicitations is most likely to occur on working time.
By overturning Register Guard, the NLRB has replaced a stable, clear, and workable rule supported by the law with an unworkable standard that will only create more conflict.