by Elijah Yip
In 2007, the National Labor Relations Board (NLRB) issued its Register Guard decision, which allowed employers to prohibit employees from using company e-mail to discuss the terms and conditions of their work with other employees or unions for purposes of “mutual aid and protection,” a right that is protected under Section 7 of the National Labor Relations Act (NLRA). Employers were relieved when the NLRB deferred a decision on whether to overrule Register Guard in September 2014. Just three months later, however, the Board reversed course and overruled Register Guard in a decision involving Purple Communications, Inc. Image may be NSFW.
Clik here to view.
The NLRB stated in the new ruling that employees who have access to their employer’s e-mail system for work purposes presumptively have a right to use the system for protected communications on nonworking time. Below are answers to some basic questions about how Purple Communications affects your company e-mail policy.
Must I give all my employees access to my e-mail system? No. Employees have a right to use corporate e-mail for protected communications only if they have already been given access to the system for work or personal reasons. Purple Communications does not force employers to grant e-mail access to anyone. For that matter, you are not required to grant e-mail access to nonemployees, including unions and union organizers.
May I put restrictions on the use of corporate e-mail for protected discussions during nonwork hours? Maybe. You may restrict employees’ use of company e-mail to engage in protected discussions during nonwork time by demonstrating that there are actual (as opposed to theoretical) “special circumstances” that “make the ban necessary to maintain production or discipline.” That appears to be a difficult standard to meet because you must establish a connection between the restriction and your interest in imposing the restriction.
Is it OK to ban all nonbusiness use of company e-mail? A total ban would be subject to the “special circumstances” test discussed above. According to the NLRB, the existence of special circumstances “will be a rare case.”
May I require employees to follow certain guidelines for nonbusiness use of company e-mail? Yes. Use of corporate e-mail for protected communications may be restricted to nonworking time. You also have the right to establish “uniform and consistently enforced controls over [your e-mail] system to the extent such controls are necessary to maintain production and discipline.” The single example provided by the NLRB is “prohibiting large attachments or audio/video segments, if the employer can demonstrate that they would interfere with the e[-]mail system’s efficient functioning.”
May I monitor my employees’ e-mail use? Yes. You may engage in monitoring for legitimate management reasons, such as ensuring productivity and preventing e-mail use for harassment or other activities that could lead to liability for your company. However, you may not change your monitoring practices specifically in response to union or other protected activity.
Does Purple Communications apply to other electronic communications systems such as texting or instant messaging? Currently, it does not, but the NLRB has signaled that it might extend the reasoning in Purple Communications to other forms of electronic communication in the future.
Image may be NSFW.
Clik here to view.
Elijah Yip is a partner with Cades Schutte LLP in Honolulu and chair of its digital media and Internet law practice group. He is a frequent contributor to Hawaii Employment Law Letter and author of the blog LegalTXTS blog. He may be contacted at eyip@cades.com.
