Authored by David P. Frenzia
Dec 18, 2014
As year-end approaches, the National Labor Relations Board (“the Board”) is busy issuing union-friendly decisions and new election rules that will drastically impact employers. On Dec. 11, 2014, in Purple Communications, Inc., 361 NLRB No. 126 (2014), a divided Board found that employees who have been given access to their employer’s email system have a presumptive right to use their employer’s property to engage in protected, concerted activities on non-working time.
Although the Board attempts to minimize its broad overreach and justify its decision by claiming its decision is “carefully limited,” nothing could be further from the truth. The Board claims that this newly found presumptive right of employees is limited because it applies only to employees who have already been given access to their employer’s email. Additionally, an employer may justify a total ban on non-work use of email by demonstrating “special circumstances,” where a total ban is necessary to maintain production or discipline. By doing so, the Board not only puts the onus on employers to justify its ban, but it requires employers to articulate, in advance, why such a ban is needed without defining the scope or nature of the exception. This lack of guidance leaves employers guessing whether they can prove “special circumstances” that will satisfy the Board’s test. And, as the Board held in other recent cases, notably Banner Health, (where the Board found that instructing—or even asking—witnesses in an investigation not to discuss the matter with others, until after the investigation is completed, violates the National Labor Relations Act (NLRA), the Board stated that an assertion of a theoretical interest that might support a ban will not suffice.
Even if this decision on its facts addresses only employees’ use of their employer’s email system to engage in protected, concerted activities, its broad and expansive reasoning belies the Board’s claim that its decision is narrowly limited in scope and impact. For instance, the Board explicitly rejected extant Board law clearly providing that employees do not have an unfettered statutory right to use their employer’s equipment for non-work purposes. There is no question that the Board’s decision will invite additional litigation concerning other employer resources and equipment that employees may seek to use to organize their coworkers. As the majority acknowledges, “[o]ther interactive electronic communications, like instant messaging or texting, may ultimately be subject to a similar analysis,” but the Board leaves that question unanswered for another day.
The stark impact that the Board’s decision will have on employers’ operations is, however, readily apparent. First, even though employers have long been justified in banning oral solicitation during working time, the Board found that it is not appropriate to treat email communications as either solicitation or distribution per se. While employees’ communications may indeed be solicitation or distribution depending upon the content, the Board claims that, in majority of cases, most communications will not be solicitation or distribution, but merely “union talk.” And, even where employees’ communications would constitute distribution, the Board makes irrelevant the rules allowing an employer to prohibit distribution during employees’ working time or working areas, by declaring that an employer’s email system is, in most cases, a mixed-use area. While the decision recognizes an employer’s right to monitor email, the employer must inform employees email is not private and may be monitored. Additionally, the monitoring must be performed on a non-discriminatory basis.
The dissenting members make clear that the Board’s decision in Purple Communications will substantially impact employers. The potential fallout from the Board’s new rule will necessarily raise concerns about lawful “working time” no-solicitation policies, lawful “no access” restrictions regarding off-duty employees, privacy in the workplace, and unlawful surveillance of employees’ protected, concerted activities in addition to a host of other issues.
If you have any questions about Labor Relations or any other Employment Law matter, please do not hesitate to contact David P. Frenzia, R. Michael Lowenbaum, Corey L. Franklin, D. Michael Linihan, Robert S. Seigel, Whitney P. Cooney, Jamie Westbrook, or Ashley A. Diaz.