The National Labor Relations Board has put on its ugly holiday sweater and is ready for a repeat of its end-of-2013 gift giving season, when it dumped a slew of game-changing, pro-union decisions on employers.
In similar spirit, the NLRB has reversed existing case law and decided that employees “must presumptively be permitted” to use employer-provided email accounts for “statutorily protected communications on nonworking time.” Purple Commc’ns, Inc., 361 NLRB No. 126 (Dec. 11, 2014).
Combined with its recent expansion of the definition of “statutorily protected communication,” this decision greatly expands the rights of employees, even in the non-union setting, to use company-provided communications systems to communicate with other employees, even on a mass basis regarding a variety of topics, among them those critical or downright hostile to management.
It also opens the door for outside organizations, such as labor unions or other organizations, to access employees through the use of an employee shill. It would make unlawful both rules limiting the use of such systems to business purposes, as well as discipline or discharge of employees for engaging in non-business use.
The only stated exceptions to today’s ruling (barring reversal in the courts) are:
- employees are not granted access to email systems in the normal course of their work (i.e., they do not have email accounts – which this decision does not require)
- an employer is able to justify a “total ban” on the non-work use of email by demonstrating unspecified “special circumstances” that make it “necessary” to “maintain production or discipline” (a virtually impossible standard to meet as a practical matter)
For the moment, the NLRB has stated its decision does not apply to other precedent allowingemployers to prohibit employees from using other employer-owned equipment (e.g., public address systems) for non-work purposes.
The facts behind today’s decision are not important because this decision represents the adoption of “a new analytical framework” which would apply regardless of the situation. Invoking this new “framework,” and citing to “scholars” and “the changing patterns of industrial life,” the NLRB overruled its 2007 decision in Register Guard, 351 NLRB 1110 (2007), where the Board had held that “employees have no statutory right to use [an employer’s] e-mail system for Section 7 purposes [i.e., discussing terms and conditions of employment].”
The NLRB criticized Register Guard in unusually harsh terms as “focusing too much on employers’ property rights” and not enough on the “importance of employee discourse.” The NLRB went on to criticize its own former members who issued that decision for failing to protect employees’ (and unions’) rights and abdicating their responsibility under the National Labor Relation Act.
While it remains unclear whether the decision will be appealed to the courts, employers should consult with labor counsel immediately to determine their compliance or challenge strategy, not just for this decision but others likely to be issued in the coming weeks.
We expect that the Board will issue several more important and game-changing decisions by year’s end.