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NLRB Expands Employees “Personal Rights” on Company Time

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In a December 11, 2014, decision by a sharply divided National Relations Labor Board (NLRB), employers who thought they owned their email systems and the time of employees spent in those systems were put on notice that their presumption of ownership is no longer the case. In Purple Communications, 361 NLRB No. 126 (2014), the NLRB ruled that employees with access to employer email systems “in the course of their work” must, in most cases, be allowed to use that email to communicate with one another about any and all workplace issues during non-working time. There are still many questions that will need to be answered as employers grapple with the consequences of this decision, but suffice to say that it will be much easier for employees to engage in union activity at work and significantly limits an employer’s right to control its property and equipment.

Purple Communications overrules a 2007 decision in Register Guard, 351 NLRB 1110 (2007), in which that Board held that there was no statutory right to use employer email systems for protected activity, stating that the previous Board’s decision back in 2007 focuses too much on “employers’ property rights and too little on the importance of email as a means of workplace communication, [thus failing] to adequately protect employees’ rights under the [National Labor Relations Act (NLRA or the Act)] and abdicated its responsibility ‘to adapt the Act to the changing patterns of industrial life.’”

The limitations to this far-reaching allowance are narrow at best. Email communications on protected activity must be limited to non-working time; thus, an employer can limit non-work related email use to lunch time and work breaks. However, employers will likely find these limitations difficult to monitor and/or enforce. The Board also held that an employer can demonstrate “special circumstances” that make a total ban on non-work use of email necessary to maintain production and discipline. But, the Board failed to provide guidance or examples of these special circumstances and also made it clear that those situations will be quite rare. Employers seeking these types of exemptions will be the test cases for all, not an ideal situation to find themselves in particularly if they are themselves subject to discipline and fines.

Further, this does not bode well for other communications systems owned and controlled by employers in the workplace. Presumably, these allowances for protected activity may expand into the telephone systems as well. Also, this opens the door for employee claims of unlawful surveillance of workplace emails even though the employer owns and controls the property and equipment.

Hilary Atkins

Posted In: Legal

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