My regular readers know that I often check in with the National Labor Relations Board (NLRB) and their rulings concerning employees’ use of social media and other electronic communication tools (here’s one previous blog post on the subject.) December 2014 brought some big news in the world of employment law: the NLRB overturned a previous ruling that restricted employees’ use of company email for union organizing communications. What’s the ruling all about, and does it affect non-unionized workplaces?
Let’s start with a summary: the National Labor Relations Act (NLRA) does not allow an employer to take actions or have a policy that may actually or potentially “chill” an employee’s right to engage in protected concerted activity – basically, concerted activity means discussing work conditions with other employees. The Act is violated if employees would reasonably interpret the language of a policy to prohibit Section 7 activity or if the policy has been applied to restrict the exercise of Section 7 rights (this is referring to Section 7 of the NLRA).
December’s NLRB ruling, in the case of Purple Communications and Communications Workers of America, AFL-CIO, states in its first paragraph 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.” They explicitly overruled a 2007 NLRB case that allowed employers to restrict such communications.
To put that another way, if an employer allows employees access to company email, those employees can use that email network to discuss union organizing, grievances, or other related matters. In order to overcome this presumption and to ban all nonwork use of email, the employer must demonstrate “that special circumstances make the ban necessary to maintain production or discipline.”
What kind of “special circumstances?” Well, it’s safe to assume that will be the subject of future NLRB cases and litigation. That said, the ruling makes it clear that an employer can’t just throw out the words “special circumstances” and handwave away any NLRA concerns:
[A]n assertion of special circumstances will require that the employer articulate the interest at issue and demonstrate how that interest supports the email use restrictions it has implemented…Because limitations on employee communication should be no more restrictive than necessary to protect the employer’s interests, we anticipate that it will be the rare case where special circumstances justify a total ban on nonwork email use by employees.
In addition to citing legal sources, the NLRB based its decision on a series of observations about how contemporary businesses operate in the real world:
There is little dispute that email has become a critical means of communication, about both work-related and other issues, in a wide range of employment settings…Some personal use of employer email systems is common and, most often, is accepted by employers…In addition, the number and percentage of employees who telework is increasing dramatically, resulting in more employees who interact largely via technology rather than face to face…If anything, email’s effectiveness as a mechanism for quickly sharing information and views increases its importance to employee communication.
What Does This Mean for Employees and Employers?
Any employer policies that don’t comply with this ruling will leave that employer subject to a labor claim. Furthermore, the ruling applies retroactively. Employers should act as quickly as possible to bring their email policies into compliance with this ruling.