How Does the NLRB’s Ruling on Non-Business Use of Email Affect Your Business?

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As you may have heard, the NLRB recently ruled that employees who are given access to their employer’s email system for their jobs must be permitted to use that email system during nonworking time to engage in protected activity, such as forming a union or discussing terms and conditions of employment. This ruling applies to both unionized and non-unionized workforces. The ruling has caused some controversy because it overturned long-established precedent. It is not, however, a reason to panic. Employers who are already complying with the NLRB’s guidance on social media need only make a few changes to their policies.

The case is called Purple Communications, Inc., and all 70-plus pages of the order are available here (under “Board Decision” dated 12/11/2014). The rule before this case was that an employer had the right to restrict non-business use of its email system, so long as it did so in a non-discriminatory fashion. In Purple, the Board held that employees must be granted access to use their employer’s email system during nonworking time to engage in protected activity, such as discussing terms and conditions of employment. Employers with a strict rule that work email is for business use only will therefore need to revise their policy to allow employees to use company email during nonworking time to engage in protected activity. There are some limited exceptions to this rule, for circumstances where permitting use of company email for protected activity will seriously disrupt productivity or business operations. If you think this is the case for your business, please contact us, and we can help you craft a policy that should satisfy the NLRB.

If, like many employers, you already allow non-business use of work email during nonworking time, this decision still impacts you. Most employers have some kind of policy that regulates what employees can do on the company’s email and other communication systems. Because the Purple ruling requires employers to allow employees to use company email to engage in protected activity, restrictions that infringe on this right are no longer OK. This, too, is no reason to panic, however, because it simply means your use of technology policy has to look a bit more like your social media policy (you have one of those, right?). As discussed in the blog posts available here, the Board has already issued a series of rulings and memoranda explaining how it will evaluate social media policies. Generally speaking, the Board has stated that a policy will be struck down if it could be read by a reasonable employee to prohibit protected activity, such as engaging in collective action or discussing conditions of employment.

Although Purple Communications was a dramatic opinion, in that it overturned decades of previous Board law, it should not be difficult for businesses to adapt.

Victoria Slade

I am an associate at Garvey Schubert Barer, where I practice in the litigation and employment groups. I mostly work in employment litigation, and I frequently represent public entities. When I'm not wrapped up in litigation, I also assist clients with advice questions and employee handbook policies. I am particularly interested in questions of social media in the employment setting, and I have drafted numerous social media policies and advised on discipline for social media-related offenses. In my "spare" time, I have enjoyed taking advantage of GSB's great pro bono policy. I have worked with the ACLU, Team Child, Appleseed, and the Tenants Union on various pro bono cases and projects. For the Tenants Union, I drafted an amicus brief to the Washington Supreme Court on an extremely important tenants' rights issue, and the Tenants Union honored me and the team with their Housing Access Award. I also am member of the Board of Directors of the amazing feminist legal advocacy organization, Legal Voice.

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