This month, a divided National Labor Relations Board held in Purple Communications, Inc. that employees have the right to use their employer-provided business email accounts for non-work purposes during non-work hours. In doing so, the Board reversed a 2007 precedent equating email with any other employer-owned property—seeing email as not much more than a real-life bulletin board, the Board felt that a ban on non-work email usage was fine, so long as it didn’t discriminate.

Purple Communications sets a new standard

The Board’s reversal turns that view on its head, emphasizing the singular role of email in the lives of today’s employees, and the absolute right under Section 7 of the National Labor Relations Act that those employees have to communicate with each other about the terms and conditions of their employment.

Email represents a “natural gathering place” for employees to communicate with each other, the Board found, emphasizing its “centrality” to employees’ discussions, including their Section 7-protected discussions about terms and conditions of employment.

The Board, in a striking reversal of its 2007 decision in Register Guard, adopted a presumption that employees who have already been given access to their employer’s email system for work purposes are entitled to use the system during non-work hours in order to engage in statutorily protected discussions and to engage in organizing efforts, absent a showing by the employer of “special circumstances that justify specific restrictions.”

These special circumstances could include, for instance, damage to the email service or overloads from excessive use, but the Board noted that such circumstances justifying a total ban on non-work email use “will be the rare case” and that an employer contending special circumstances would have to prove the connection between the interest asserted and the restriction imposed.

The Board emphasized that its decision related only to employees who already have access to their employer’s email system for work purposes, and only to email—not other forms of electronic communication like instant messaging or texting (although the Board did state that these fora “may ultimately be subject to a similar analysis”).

Watching employees: surveillance or observation?

Purple Communications makes special note of an important issue that arises in any discussion of employee communications: surveillance.

Surveillance of employees by their employers violates the Act. Even surveillance motivated purely by curiosity or comments made creating an impression of surveillance have been found to violate the Act. But unlawful surveillance, which interferes with the Section 7 rights of employees, differs from observation, which does not.

Employer observation of employee activity presents no violation, so long as the observation is passive and consistent with legitimate interests and productivity. For instance, while hiring additional security guards to stand around during union leafleting activity (who also record the names of employees taking leaflets) would violate the Act, a supervisor simply watching union activities at a plant entrance would not.

When is monitoring okay?

So when can employers look at employees’ emails without violating the law?  Electronic communications can also increase efficiency at work, or decrease productivity, depending on how employees use them. Most employers have strict policies against harassment or other illegal behavior, and a legitimate business interest in promoting productivity.

Employers may, therefore, monitor their employees’ online activities to protect their own business interests. Indeed, employers should engage in such monitoring so that they may invoke an affirmative defense to potential employee allegations of harassment. Furthermore, employers are well within their rights to look at employee electronic communications after communicating that employees do not have a reasonable expectation of privacy in their workplace communications—and that even if they do, monitoring will be permitted for a legitimate work-related rationale.

Still, how does this work in the context of employees’ Section 7 rights?  The Purple Communications Board acknowledged that employers will have concerns about the extent to which they may legally monitor their employees’ email use, whether to keep an eye on working time limitations, to ensure productivity, or to prevent harassment or other unlawful activity.

But such monitoring does not violate the Act “so long as the employer does nothing out of the ordinary,” such as focusing the monitoring on union activity or increasing the monitoring during an organizational campaign. An employer that actually changes its monitoring practices in response to union activity will absolutely violate the Act. In other words, employers are still entitled to observe, but not to survey.

What employers need to know

Now that the Board fully recognizes the central and crucial role that electronic communication—and especially email—plays in the interactions between employees, employers will not be able to downplay the importance of these communications. Nor will employers enjoy the protection of the law when they set absolute limits on non-work use of work email accounts.

Given the centrality of email to the daily communications of workers, employers must respect their employees’ use of these accounts for non-work reasons during non-working time, but they may still prohibit illegal uses of the accounts, and they may remind their employees that their email is not private.

All employers granting email access to employees should have in place a written policy outlining the employer’s right to monitor the communications and that the employee does not have an expectation of privacy in his or her communications. The temptation to engage in illegal surveillance of emails in order to assess or squelch union activity may present itself, but savvy employers must resist this urge.

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