Black and Blue Over Purple • Northwest Indiana Business Magazine

Black and Blue Over Purple

NLRB's decision related to email systems may trouble employers.

by Jerry Lutkus

Many employers have email policies that prohibit employees from using the company's email for non-work purposes. If you have a no-tolerance policy, a recent decision of the National Labor Relations Board should cause you to take another look at it. The new decision is called Purple Communications and it may leave employers feeling black and blue.

Late last year, the NLRB, in a 3-2 party line vote, struck down its 2007 decision in Register Guard, declaring it “clearly incorrect” and instead ruling that employee use of employer email systems during non-working time for acts protected under the National Labor Relations Act must presumptively be permitted by employers who have previously granted employee access to email systems.

The Purple Communications employee handbook stated that “Computers, laptops, internet access, voicemail, electronic mail (email), Blackberry, cellular telephones and/or other Company equipment is provided and maintained by [the Company] to facilitate Company business. … All such equipment and access should be used for business purposes only.” In addition, employees were “strictly prohibited” from using this company equipment in connection with activities “on behalf of organizations or persons with no professional or business affiliation with the Company.”

In overturning Register Guard and finding Purple's policy to be illegal, the NLRB focused on three points: (1) Register Guard undervalued employees' rights to communicate in the workplace about terms and conditions of their employment and overvalued employers' property rights; (2) Register Guard failed to perceive the importance of email as a means for employees to discuss terms and conditions of employment; (3) Register Guard put too much weight on prior NLRB decisions regarding employer-owned equipment.

At the risk of oversimplifying both rulings, Register Guard held that email systems are the property of employers and they could therefore control or prohibit certain employee uses of those systems. Purple Communications, on the other hand, holds that employer property interests in their email systems usually must yield to employee rights under Section 7 of the NLRA.

While the Purple Communications case arose in the context of a union organizing campaign and election and the NLRB itself characterized its decision as a “limited” one, the decision's language suggests a much broader application. The board's opinion does not indicate that the employer's email policy had any specific discriminatory impact on the employees organizing the union. However, even without such discriminatory impact, the board established an affirmative right for employees to presumptively use email systems to which the employees have already been granted access. Said another way, subject to one limited exception, an employer violates the law by banning all non-work-related email use, even though such a ban would not discriminatorily target Section 7 activities.

An employer seeking to rebut the presumption must show that special circumstances necessary to maintain production or discipline exist to justify the restriction on employee rights. The board offered that it will be “the rare case where special circumstances justify a total ban on non-work email use by employees.” However, where special circumstances do not justify a total ban, employers may apply “uniform and consistently enforced controls” over email systems to the extent necessary “to maintain production and discipline.”

The significance of this decision cannot be overstated, even for non-union employers. Remember, the board here is talking about employee speech that is protected under Section 7. Therefore, that not only covers organizing activity, but it also covers all discussion of terms and conditions of employment that have been the subject of repeated NLRB social media decisions.

Employers should consider taking steps to review their policies, such as:

* Rewrite policies that bar all non-work use of employer-provided email systems.

* To the extent you have restrictions on statutorily protected communications, make sure that you can justify the restrictions.

* Use the opportunity to review other solicitation, distribution and communication policies, paying particular attention to whether these policies may reasonably tend to chill protected communications.

Gerald F. “Jerry” Lutkus is a partner in the South Bend office of Barnes & Thornburg LLP, where he is a member of the firm's Labor and Employment Law and Litigation departments.


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