Rejecting and overruling its 2007 decision in Register Guard that limited employee rights to use employer email systems for union organizing, the NLRB, in a three to two decision, significantly broadened the scope of private employee rights to use an employer’s email system for union organizing purposes and other protected activity. The decision focused on the employer’s overbroad internet use policy and declared the policy to be unlawful. That policy is not unusual and policies similar to it are in use throughout the country. Besides finding that the policy was unlawful, the NLRB also made its decision retroactive in any pending cases so that any employer policy similar to the one at issue here is potentially unlawful as well. In light of this decision, private employers will need to do an immediate review of their internet use policies and other policies related to solicitation in the workplace.
The NLRB’s decision, together with two strong dissents by the Republican Members, runs for 74 pages and discusses the balance of employee rights against employer rights to the use of its property. In essence, this majority of the NLRB members held that the previous majority of the NLRB members in the 2007 Register Guard case were wrong in the balance it struck back then that allowed employers to limit, in some cases, employee use of their email systems.
The Policy That Was Found to Be Unlawful
The employer in this case maintained the following policy in its Employee Handbook.
INTERNET, INTRANET, VOICEMAIL AND ELECTRONIC COMMUNICATION POLICY
Computers, laptops, internet access, voicemail, electronic mail (email), Blackberry, cellular telephones and/or other Company equipment is provided and maintained by the [the Company] to facilitate Company business. All information and messages stored, sent, and received on these systems are the sole and exclusive property of the Company, regardless of the author or recipient. All such equipment and access should be used for business purposes only.
Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other Company equipment in connection with any of the following activities:
2. Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company.
5. Sending uninvited email of a personal nature.
The NLRB concluded with respect to this policy and others like it, that to accommodate the competing rights of employers and employees it is appropriate to adopt a legal presumption to be applied in these cases involving email use policies. Simply stated, the presumption is that employees who have rightful access to their employer’s email system in the course of their work have a right to use the email system to engage in Section 7-protected communications on nonworking time.
The NLRB also ruled that an employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights. Those special circumstances – whatever they may be – will be difficult to show. An employer contending that special circumstances justify a particular restriction must demonstrate the connection between the interest it asserts and the restriction. The mere assertion of an interest that could theoretically support a restriction will not suffice, according to the NLRB.
The NLRB’s Decision Is “Limited”
The NLRB majority claims that its decision is a limited one. It addresses only email systems, not any other electronic communications systems, because only email systems were at issue in this case. Its decision encompasses email use by employees only. There was no finding that nonemployees have rights to access an employer’s email system. There is no requirement that an employer must grant employees access to its email system, where it has not chosen to do so. Importantly, the presumption is expressly limited to nonworking time.
Further, the ruling does not prevent an employer from establishing uniform and consistently enforced restrictions, such as prohibiting large attachments or audio/video segments, if the employer can demonstrate that they would interfere with the email system’s efficient functioning.
The NLRB acknowledged that some employers who choose to impose a working-time limitation will have concerns about the extent to which they may monitor employees’ email use to enforce that limitation. The decision does not prevent employers from continuing, as many already do, to monitor their computers and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for purposes of harassment or other activities that could give rise to employer liability. If there are issues of unlawful surveillance, then, according to the NLRB, those issues would be dealt with under existing rules applicable to surveillance.
What to Do Now
In light of this decision, private employers should immediately and carefully review their existing internet and computer use policies to make sure that they will not be seen as overbroad by the NLRB. Unfortunately, the bottom line is that, at least for now, when a private employer grants employees access to its computer system, it must allow employees to use that system to engage in union organizing or other protected activities. Employers can expect that challenges will be made to existing policies and their reactions to employee activities will be tested. A new era of complexity is dawning.