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National Labor Relations Board Sides with Employees on Email Use

Email

Recently, the National Labor Relations Board (Board) established a new standard with regards to employee use of email in its consideration of the Purple Communications, Inc. case. Specifically, the Board affirmed that if employers provide employees with access to their email, the employee’s use of that email for statutorily protected communications (on nonworking time) is presumed to be permitted.

At issue in the case was the employer’s handbook policy, which prohibited employees from using the company email for non-business purposes, banning the use of the “internet, intranet, voicemail, and electronics communications,” and whether this was lawful under the National Labor Relations Act (NLRA).

National Labor Relations Act & Previous Decisions

The NLRA affords employees specific rights, such as the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. A prior decision by the Board held that if employees have been granted access to their employer’s email system for work-related purposes, the Board then presumes that they have a right to use that email system to engage in NLRA-protected communications on nonworking time unless the employer demonstrates that special circumstances warrant restricting that presumptive right. At issue in this case was whether the company’s official policy on electronic communications violated the NLRA and Board’s previous decision, i.e. whether these special circumstances existed.

Analysis

In analyzing whether the company’s communication policy interfered with employees’ Section 7 & 8(a)(1) rights under the NLRA, the Board focused on the company’s prohibition being broad enough to encompass employee’s use of the email system for Section 7 activities during nonworking time and the fact that the company failed to attempt to establish special circumstances to rebut the presumption that the policy violates the NLRA. The Board held that the company simply being concerned about protecting against computer viruses and the release of confidential company information does not rise to the level of special circumstances necessary to maintain this level of email use restrictions. Ultimately, the Board found that the company violated the NLRA by maintaining an overly broad electronic communications policy that unlawfully restricts employees’ use of its email system for Section 7 purposes. As a result, the company must rescind its policy (here, the email usage restrictions in the electronic communications policy) and notify employees that the policy has been rescinded (or adjust the policy so as to be lawful under the NLRA).

Reach Out to Our Office Today for Help

If you have been denied your rights as an employee, you should speak with an employment law attorney right away. Florida employment discrimination attorney Robert S. Norell represents people in state and federal employment-related actions throughout the greater Fort Lauderdale area. With over 20 years of experience in this field, we know how best to represent employee rights. Contact us today for a free consultation.

Resource:

nlrb.gov/cases-decisions/board-decisions

Robert S. Norell, P.A.
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Broward County: 954-617-6017
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