United States:
NLRB Says Employees Have A Right To Use Employer's Email For Section 7 Activity Under Certain Circumstances
15 December 2014
by
Littler Mendelson
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In a 3-2 split decision along party lines, the National Labor
Relations Board has held that employees are presumptively permitted
to use their employer's email systems during non-work time for
Section 7 activities if employers give employees access to their
email systems. The Board's decision in Purple Communications
overrules the 2007 decision in Register Guard "to the
extent it holds that employees can have no statutory right to use
their employer's email systems for Section 7
purposes."
The Board claims its decision is "carefully
limited":
First, it applies 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.
Finally, we do not address email access by nonemployees, nor do we
address any other type of electronic communications systems, as
neither issue is raised in this case.
In a vigorous dissent, Member Philip A. Miscimarra claims the
parameters of this decision will be difficult to apply:
Nobody will benefit when employees,
employers, and unions realize they cannot determine which
employer-based electronic communications are protected, which are
not, when employer intervention is essential, and when it is
prohibited as a matter of law. Not only is such confusion almost
certain to result from the majority's decision, it is
unnecessary and unwarranted.
Similarly, Member Harry Johnson took issue with the scope of the
Board's decision:
My colleagues have created a sweeping
new rule that interferes with an employer's well-established
right to restrict employee use of its property based on
convenience. This new framework threatens to undermine an
employer's right, as recognized by Board and Court precedent,
to have a productive workforce. The new framework probably exceeds
the jurisdiction of the Board to impose unfunded mandates on
employers and certainly violates the First Amendment.
A more detailed analysis of the Board's Purple
Communications decision and its implications for employers
will be published shortly.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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