NLRB May Grant Employers More Leeway in Restricting E-Mail Usage

 

Allen Smith, J.D. By Allen Smith, J.D. August 13, 2018
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​The National Labor Relations Board (NLRB) is considering overruling a case, Purple Communications, in which it held that employers could not forbid employees from using work e-mail systems for union purposes during nonwork time. On Aug. 1, the board invited briefs on whether it should return to the standard under Register Guard, which permitted "neutral restrictions" on e-mail use. A neutral restriction applies to nonunion solicitations, such as a request to contribute to an employee's fundraiser, and union solicitations alike.

Employers have argued that Purple Communications allows workers to clutter their in-boxes, use up electronic storage space and congest employers' servers, noted Molly Lee Kaban, an attorney with Hanson Bridgett in San Francisco.

Employers should issue reasonable, neutral rules prohibiting the use of company e-mail for nonwork purposes, said Keith McCown, an attorney with Morgan, Brown & Joy in Boston. Even if such rules might be suspect under Purple Communications, the NLRB intends to overrule the decision, he predicted. Moreover, "There are many other wholly legitimate reasons for rules prohibiting nonwork uses of e-mail systems, including the prevention of workplace sexual harassment and bullying," he noted.

However, Kaban recommended that organizations that revised their e-mail policies to comply with Purple Communications wait until it is overturned to overhaul them again.

"Employers have an obligation to ensure that the productivity tools they provide to foster workplace collaboration and communication are used respectfully and productively for all employees," said Nancy Hammer, the Society for Human Resource Management's vice president of regulatory affairs and judicial counsel. "For this reason, we welcome the board's plan to revisit its decision in Purple Communications to consider how employers can safeguard the appropriate use of employer-provided e-mail and other computer resources."

Limits Under Purple Communications

Before Purple Communications, it was permissible under Register Guard for employers to maintain neutral policies prohibiting employees from using work e-mail to communicate for purposes not related to their work, even if those restrictions had an incidental effect on communications protected by the National Labor Relations Act (NLRA).

[SHRM members-only HR Q&A: What is the function of the NLRA?]

Noting that e-mail has become pervasive, the NLRB in Purple Communications overruled Register Guard's standard. The board decided that employees have a right to use employers' e-mail for communications protected by the NLRA on nonworking time, unless the employer can show special circumstances necessary to maintain production or discipline.

Mark Kisicki, an attorney with Ogletree Deakins in Phoenix, said he isn't aware of any time the NLRB has approved a complete ban on employee use of e-mail or even partial restrictions under the special circumstances exception.

The decision has been applied beyond e-mail systems, Kisicki observed. Relying on Purple Communications' analysis, regional NLRB directors have issued complaints alleging that employers violated the act by having neutral policies restricting employee access to employer property, he noted.

What a Return to Register Guard Might Mean

The board now is considering whether it should return to the holding of Register Guard, which had let an employer make neutral restrictions on the use of e-mail for nonwork communications.

"The best example of a neutral restriction is limiting the use of the system [to] only work-related communications," noted Phillip Wilson, president and general counsel with Labor Relations Institute in Broken Arrow, Okla.

Register Guard permitted employers to prohibit e-mail that is disruptive or poses security threats or costs to computer systems, even if they allow some e-mails for socializing, which might boost morale, Kisicki noted.

The decision not only permitted limitations on e-mail solicitations for union or other NLRA-protected activities, it also concluded that an employer could legally prohibit employees from using employers' e-mail to solicit for outside causes. "Each year, HR professionals deal with employee frustration about how to handle solicitations in the workplace—even for worthwhile causes—because the employees being solicited feel uncomfortable having to tell their peers or boss 'no,' " Kisicki said. "The vast majority of these concerns have nothing to do with employees soliciting for unions." 

Register Guard was relatively easy to implement, Kaban concluded.

McCown agreed, saying, "the Register Guard standards were clear and fostered predictability. The Purple Communications standards contain gray areas and require guesswork by the affected parties."

Dissenting Members

NLRB member Lauren McFerran opposed reconsidering the Purple Communications decision. She said nothing justified overruling the decision, as there is no evidence of problems caused in the workplace by the ruling.

Member Mark Gaston Pearce also dissented, saying there was no evidence that Purple Communications will create significant challenges for employees, unions, employers or the NLRB.

The case in which reconsideration of Purple Communications is being reviewed is Caesars Entertainment Corp. v. International Union of Painters and Allied Trades, District Council 15, Local 159, AFL-CIO.

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