Can our company prohibit employees from using the company email system to send personal email?
We recently were asked by a client to provide guidance on the National Labor Relations Board decision in Purple Communications, Inc., 361 NLRB No. 126 (December 11, 2014). To the extent that other employers may be assisted by a summary of that decision, we offer below some of its key points. Remember, the NLRA can apply to both union and non-union workplaces, as is the case with here.
On December 11, 2014, the NLRB issued a decision in the case of Purple Communications, Inc., addressing the rights of employees to effectively communicate with one another at work regarding self-organization and other terms and conditions of employment (otherwise referred to as “exercising Section 7 rights”). The decision is limited to employees who have been granted access to the employer’s email system in the course of their work. The key points:
- By way of this decision, the NLRB has adopted the presumption that, barring “special circumstances,” employees who have been given access to the employer’s email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about the terms and conditions of their employment while on nonworking time (i.e. before or after work and while on breaks).
- The decision does not require that an employer grant employees access to its email system where it has chosen not to do so. (Employers are cautioned, however, against granting selective access based on non-business criteria.)
- The non-work email protected by the NLRB is expressly limited to email sent during nonworking time. An employer has the right to uniformly restrict employees from engaging in such activity during working time.
- The decision does not prevent employers from continuing to monitor computers/email systems for legitimate management reasons and so long as the employer does not target employees engaged in union activities/exercising Section 7 rights.
- Nor is an employer generally prevented from notifying its employees, as many employers already do, that it monitors (or reserves the right to monitor) computer and email use for legitimate management reasons and that employees may have no expectation of privacy in their use of the employer’s email system.
In the event you would like to discuss how this decision might impact your company’s electronic mail policy or to review your electronic communications policy, please feel free to contact the EMPLOYMENT PRACTICES GROUP.