Email is the present day water cooler: NLRB holds that a total ban on nonwork email use by employees is unlawful

On December 11, 2014, the National Labor Relations Board overturned a seven (7) year precedent concerning the right of employees to use their employers' e-mail systems for non-business purposes. In Purple Communications, Inc., Case No. 21-CA-095151, the NLRB held that employees who have been given access to the employer's email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time, absent a showing of special circumstances that justify specific restrictions. As explained in my November 4, 2014 blog, all private-sector employees, unionized or not, have the right to act together to try to improve their pay and working conditions or fix job-related problems under the National Labor Relations Act ('NLRA'). This is called 'protected, concerted activity.' If an employer attempts to interfere, or interferes with, these rights, that employer has violated the NLRA. According to the NLRB's decision in Purple Communications, Inc., employees now have the presumptive right to use their employers' email system while on nonworking time in order to engage in protected concerted activity, which includes, but is not limited to, the right to communicate about union organizing, plan union activities, and complain about their supervisors. In rendering this decision, the NLRB claimed that its decision was 'carefully limited' in the following ways:

• Uniform and Consistent Controls: 'Where special circumstances do not justify a total ban, employers may nonetheless apply uniform and consistently enforced controls over their email systems to the extent that such controls are necessary to maintain production and discipline.' For instance, employers may prohibit large attachments or audio/video segments, if the employer can demonstrate that they would interfere with the email system's efficient functioning.

• Monitoring and Security: Employers are still allowed to monitor employees' use of 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. However, if an employer increases its monitoring during an organizational campaign or focuses its monitoring exclusively on protected activity, this will be deemed unlawful under the NLRA.

• Must Already Have Access to Work Emails: The NLRB's decision applies only to employees who already have access to their employer's email system for work purposes and does not require employers to provide such access.

• The Decision Does Not Apply to NonEmployees: The NLRB's decision did not find that nonemployees have the right to access an employer's email system.

The NLRB also noted that an employer may justify a total ban on nonwork use of email, including Section 7 use on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline. However, this statement is misleading. The NLRB later stated that 'it will be the rare case where special circumstances justify a total ban on non-work email use by employees,' which indicates it may be extremely difficult for an employer to justify a total ban on nonwork use of email. In the end, the NLRB justified its decision by stating that it seeks to make 'national labor policy…responsive to the enormous technological changes that are taking place in society.' According to the NLRB, email is a 'common form of workplace communication,' which must be protected by the NLRA. Take Aways: In light of this decision, Iowa employers – unionized and nonunionized – should carefully review their employment policies and practices to ensure compliance with this decision. This includes your practice of monitoring and inspecting emails. If you have any questions regarding how this case may impact your employment policies and practices or whether special circumstances may justify a total ban on nonwork email use by employees at your place of employment, please contact a member of Dickinson's employment law group.