It has traditionally been understood and recognized that employees do not have an expectation of privacy when using their employer’s computer system and that employers can monitor and control their employees’ emails. However, in light of a recent decision by the National Labor Relations Board (“NLRB”) in Purple Communications, Inc., 361 NLRB 126 (2014), employers may need to rethink this commonly held belief.
In Purple Communications, the NLRB overruled long-established precedent that employees have no statutory right to use their employer’s email system for Section 7 purposes and held instead that employee use of email for statutorily protected communications on nonworking time must be presumptively permitted by employers that give employees access to their email systems.
Section 7 of the National Labor Relations Act (“NLRA”) gives employees the right to form, join or assist unions and to engage in other concerted activities. By way of example, Section 7 protects employees that, among other things, criticize a company’s policies and procedures, its management, or other terms and conditions of their employment.
The Purple Communications’ case arose in the aftermath of a union organizing campaign. Specifically, like many companies throughout the country, the company in Purple Communications had a policy requiring that email, as well as other communication tools provided by the company, “be used for business purposes only.” The policy also prohibited employees from using company email to “engag[e] in activities on behalf of organizations or persons with no professional affiliation or business with the company.” In short, employees could not use the company email systems for any non-business related activities, which arguably included protected Section 7 activity. Certainly, in light of the prior precedent, the company in Purple Communications had good reason to believe that its policies complied with the law.
In overruling such well-established precedent, however, the NLRB effectively held that an employee’s use of email for statutorily protected communications on non-working time must presumptively be permitted by employers who have chosen to give employees access to their email systems. Put another way, once an employer gives an employee access to its email system for business purposes, it must allow that employee to use that system to communicate about Section 7 activities as well.
As you can imagine, this recent decision could have a significant impact on an employer’s ability to track, monitor and/or use employee electronic communications. For example, it has generally been accepted that employers have the right to control and/or monitor their employee’s emails sent and received through the company computer systems. But now, under Purple Communications, any such monitoring and/or control may constitute an unlawful surveillance of Section 7 protected concerted activities under the NLRA and could subject an employer to liability for unfair labor practice. Similarly, this decision may very well impact an employer’s right to discipline employees for statements they may make about their co-workers, supervisors or the company through electronic communications.
In light of this novel holding, every employer subject to the NLRA (which includes virtually all employers, union and non-union) should review their policies regarding non-business use of company electronic mail and determine whether these policies comply with the principles set forth in Purple Communications. Although this case is still likely to be challenged in court, which may result in its reversal, it is absolutely clear that, by this decision, the NLRB is attempting to establish an additional avenue through which unions may organize workplaces.
Should you have any questions, please do not hesitate to contact E. Jason Tremblay or your Arnstein & Lehr LLP labor and employment attorney.