By Linda H. Evans,
In a 3-2 decision today (Thursday, December 11), the NLRB ruled that if an employer grants its workers access to a work email system, employees should be able to use it to discuss workplace issues, including those related to unionization. Back in 2007, the NLRB had ruled that workers do not have the right to use work email systems to communicate with one another about pay and workplace conditions. The ruling today stemmed from a case that the Communications Workers of America (CWA) union brought in 2012, after it came up short in its attempt to organize employees of Purple Communications, Inc., in California, a company that provides interpreting services for the deaf and hard of hearing. The union had argued that prohibiting the workers from using the company’s email system for non-business purposes and on behalf of organizations not associated with the company interfered with the CWA’s organizing efforts. The company had argued that its email restrictions were aimed at cutting down on workplace distractions.
The NLRB agreed with the CWA’s arguments and stated, “Employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to given employees access to their email systems.” The NLRB also said the earlier decision had failed to protect the workers’ right to organize and did not adequately consider the changing patterns of industrial life.
What the new decision does/does not address: The NLRB said the decision was a limited one in that: it only addresses email systems; only email systems used by employees; only for use during nonworking time; can apply to employees’ emails both in favor of and against unions; does not allow nonemployee rights to access the employer’s system; and does not require an employer to grant employees access to its email which, where it has chosen not to do so, and the employer can rebut the presumption that access has been granted by showing that special circumstances make the presumption inappropriate in the workplace. Further the decision does not prevent an employer from establishing uniform and consistent enforcing of restrictions, such as prohibiting large attachments or audio/video segments, if the employer can demonstrate that they would interfere with the system’s efficiency.
Concerns about monitoring: The NLRB did acknowledge employers’ concerns about monitoring and ruled that the decision does not prevent employers from continuing to monitor their email systems for legitimate management reasons and that any surveillance allegations can be assessed by the same standards that are now in use for alleged surveillance in the brick-and-mortar world. The Board reiterates that those who choose to openly engage in union activities at or near the employer’s premises cannot be heard to complain when management observes them, as long as management does not do anything out of the ordinary. Neither is management prevented from notifying employees that the systems may be monitored, and employees should have no expectation of privacy.
We will continue to research this new decision and keep you posted on updates. Review your handbook and call us if you have questions.