NLRB Issues New Rule on Employee Email Communications

By Krista Nelson Slosburg | Related Practice: Employment

On December 11, 2014, the National Labor Relations Board (“NLRB”) cautioned that employer policies that generally prohibit employees from using company email systems for personal or non-work related communications during non-work time are likely unlawful. Under Purple Communications, Inc. and Communications Workers of America, AFL-CIO, 361 N.L.R.B. 126 (2014), if employees are provided access to work email, then employers must allow employees to use the email system to engage in discussions about terms and conditions of employment. Policies that limit email use to “business purposes only” or that specifically prohibit certain uses are likely invalid.

 

Purple Communications will have a significant impact in the workplace, and employers should carefully review existing email policies going forward. Below are several key points of which employers should be aware.

Employers do not have an obligation to provide email access.

The new rule only applies if employers have already granted employees access to a work email system during the course of their work—it does not require employers to provide employees with email access.

The rule only applies during non-work hours, and employers can still monitor email use.

The rule only applies during non-work hours, including breaks, which means that employers do not have to tolerate excessive emailing during working hours if it limits productivity. Employers may apply uniform and consistently enforced controls over email systems to the extent it is necessary to maintain production and discipline. For example, an employer can prohibit large attachments or audio and video segments if it can demonstrate that they would interfere with the email system’s efficient functioning.

Employers can also continue to notify employees that they have no expectation of privacy in their use of the employer’s email system. Employers can likewise continue to monitor computers and email systems for legitimate management reasons, such as preventing email use for purposes of harassment or other activities that could give rise to employer liability.

However, employers should be careful not to take action that is out of the ordinary, like increasing monitoring during an organizational campaign or focusing its monitoring efforts on protected conduct or union activists. It is unlawful for an employer to change monitoring in response to union or other protected concerted activity.

An employer can only justify a total ban on non-work email use if it can demonstrate special circumstances.

While complete bans on personal use of work email systems have been common for quite some time, under Purple Communications, an employer can only justify a total ban on non-work email use if it can demonstrate that special circumstances make the ban necessary to maintain production or discipline. An assertion of special circumstances requires the employer to articulate the interest at issue and demonstrate how that interest supports the email use restrictions it has implemented. Essentially, the employer must demonstrate the connection between the interest and the restriction.

The mere assertion of an interest that could theoretically support a restriction is insufficient. In addition, an employer’s interests will ordinarily establish special circumstances only to the extent that those interests are not similarly affected by employee email use that the employer has authorized. In other words, the employer must be able to show how restricted email use is different from the sort of email use the employer permits.

While the question of what constitutes “special circumstances” is somewhat unclear, the bottom line is that employers should be very wary of complete bans and categorical limitations on non-work email use. In fact, the Board cautioned that “it will be the rare case where special circumstances justify a total ban on non-work email use by employees.”

Review policies.

Employers should carefully review policies and revise blanket prohibitions on email for non-work purposes or categorical bans for certain types of use.

For now, the rule only applies to employee email access—not to other forms of electronic communications like text messages or instant messaging.

If you have additional questions, please contact a member of our Employment group.