Employees’ presumptive right to use employer email for protected communications reaffirmed by NLRB

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By Joy Waltemath

By Ronald Miller, J.D.

Following remand for a determination of the lawfulness of an employer’s “electronic communications policy” under the Board’s new standard announced in Purple Communications, Inc. (Purple I), a divided three-member panel of the NLRB reaffirmed that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems. Acting Chairman Miscimarra filed a separate dissenting opinion (Purple Communications, Inc., March 24, 2017).

Electronic communications policy. Since June 2012, the employer has maintained an employee handbook that contains its electronic communications policy. Under that policy, computers, laptops, internet access, voicemail, electronic mail (email), Blackberry, cell phones and/or other company equipment is to facilitate company business. Employees are strictly prohibited from engaging in activities on behalf of organizations or persons with no professional or business affiliation with the company, or sending uninvited email of a personal nature, among other uses.

The employer provides sign language interpretation services. It employs interpreters to work at 16 call centers that process calls on a nationwide basis, around-the-clock. In the fall of 2012, a union petitioned to represent the interpreters that resulted in a Board election at seven call centers. Subsequently, the union filed objections to the results at two facilities, asserting that the employer’s electronic communications policy interfered with the interpreters’ freedom of choice in the election. An administrative law judge found the employer’s electronic communications policy lawful under Register Guard.

New standard. In its initial decision in this case, Purple I, the Board partially overruled the 2007 decision in Register Guard, and held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.” The Board further held that “an employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.” Thereafter, the Board remanded the proceeding to an administrative law judge to “allow the parties to introduce evidence relevant to a determination of the lawfulness of the employer’s electronic communications policy” under the Board’s new standard.

On remand, the employer notified the ALJ that it would not contend that special circumstances exist justifying its electronic communications policy. As a consequence, the law judge issued a supplemental decision finding that the employer had not rebutted the presumption that its policy is unlawful. While the employer concedes that it did not show special circumstances justifying its policy, nevertheless, it contended that Purple I was wrongly decided and should be reconsidered. However, the Board rejected the employer’s position for the reasons stated in the majority decision in Purple I.

Property rights v. workplace communications. In Purple I, the Board majority found that the Register Guard analysis focused too much on the employers’ property rights and too little on the importance of email as a means of workplace communications. Arguing that its decision was carefully limited, the majority sought to accommodate employees’ Section 7 rights to communicate and the legitimate interests of their employers. First, the ruling applied only to employees who have already been granted access to the employer’s email system in the course of their work and does not require employers to provide such access. Second, 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. Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.

Dissent. In a dissenting opinion, Acting Chairman Miscimarra found merit in the employer’s contention that Purple I was wrongly decided. He urged that the standard adopted by the majority is incorrect and unworkable, and would return to the rule of Register Guard that employers may lawfully control the uses of their email systems, provided they do not discriminate against NLRA-protected communications by distinguishing between permitted and prohibited uses along Section 7 lines. Miscimarra would find that the employer’s electronic communications policy was lawful under Register Guard.

Source:: Employees’ presumptive right to use employer email for protected communications reaffirmed by NLRB

      

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