November 29, 2022

Volume XII, Number 333


November 28, 2022

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Opening Pandora’s Inbox: Potential Impact of NLRB’s Decision to Grant Employee Access to Company Email Systems

The National Labor Relations Board (NLRB) has arguably swung Pandora’s box wide open by declaring that employees who have access to a company email system for business purposes now have the right to use that system to voice their disagreement with their working conditions to co-workers and outsiders alike, albeit on non-working time. When combined with the NLRB’s broad protection of employee conduct on social media, concerns for employers about the implications of the National Labor Relations Act (NLRA) in addressing conduct potentially detrimental to the workplace are becoming more concrete.

It seemed inevitable that the NLRB would change course on the issue of the use of company email systems for protected and concerted activities purposes. As indicated in a previous entry regarding the Register Guard decision, the topics listed in the invitation for amicus briefs and the position of the NLRB’s General Counsel suggested that the NLRB, in its new full-constituted roster, was considering a change in direction. On Dec. 11, 2014, the reversal of Register Guard became a reality with the issuance of the Board’s opinion in Purple Communications, Inc. The rule at issue in this case (and for many employers that incorporated the Register Guard holding in their policies) is a policy banning employees’ use of the company-provided email system for most non-business purposes.

At the core of the decision, the three-member Democratic majority determined that the Register Guard Board had given too little consideration to the rights of employees under Section 7 of the NLRA (which recognizes the right of employees to engage (or refrain from engaging) in discussions about their workplace conditions) and too much consideration to the rights of employers who provide the email service as part of the tools of communications in the workplace.

The majority went to great length to explain that email communications have become the primary means for discussion in the workplace, and that an increasingly non-physically connected workforce depends not only on emails for interaction with co-workers, but also for nominal interactions with third parties, noting anecdotally that such third-party communications via work email could very well increase, as opposed to decrease, productivity.

Thus, echoing the minority view in Register Guard that email had become the “new water cooler” of the modern workplace, the majority in Purple Communications concludes that Register Guardgave too little weight to the role of employer-provided email in the workplace and the co-extensive employee right to communicate about Section 7 rights using this resource made available by the employer.

The majority dismissed the argument that other electronic means for communicating with co-workers, such as social media and personal emails or texts, are not only viable but currently being used as an alternative means for communications regarding workplace conditions, which lessens the impact of Register Guard on employees’ Section 7 activities, by stating that the availability of other effective means of employee communications has played no part in prior decisions in this area.

Conversely, the majority minimizes the imposition upon employers that would be created by allowing employees to use a workplace email system to engage in Section 7 communications, noting that any costs of data storage or processing that could be linked to Section 7 email communications would be, at most, nominal and generally would not have to be treated any differently than business communications, and that an email system does not present an owner’s property interests similar to those applicable to brick and mortar facilities or other physical equipment (such as bulletin boards, break room televisions or PA systems). Thus, when balancing employee rights in Section 7 communications against employer rights in setting rules for use of its property, the majority concludes that employee rights far outweigh the nominal imposition created by allowing employees who are already entitled to use a workplace email system to do so on non-working time.

The practical implications of this decision are likely to be far-reaching. First, it is unclear how an employer is supposed to determine what constitutes working and non-working time when it comes to the use of email by employees. The majority offers no guideline for what type of monitoring a company can engage in and remain within the newly set legal standards, conveniently taking the position that it does not presume to tell employers how to monitor communications. As the two dissenting members suggest, there appears to be very little that employers can do to enforce a differentiation between proper and improper use of email at work under the new standard provided by the NLRB.

Second, efforts to implement the rule suggested in Purple Communications could result in allegations of unlawful surveillance monitoring or interference with unfettered communications about workplace conditions and resulting unfair labor practice charges. Ironically, the majority responds to the argument that the new standard presents potential issues relating to screening of contents of emails by affirming that existing Board decisions dealing with non-electronic communications should be adequate to deal with such situations. These disciplinary decisions, however, appear just as ill-suited as applied to electronic communications as the physical equipment decisions the majority identified as ill-suited to evaluating the application of the NLRA to an employer’s email system.

Whether this ruling will be extended to other means of communications provided by employers (such as instant messaging and phone calls, whether on fixed or mobile devices) is likely, at least at the regional level. As a result of this decision, employers should begin reviewing their policies because outright bans on non-work related use of company provided emails (and likely other employer-provided means of communications) will subject employers to NLRB scrutiny and likely issuance of complaints. Although the majority adopted an exception allowing outright bans in circumstances where an employer can demonstrate that legitimate business necessities warrant lifting the presumption that email use by employees for Section 7 communications is protected under the NLRA, the majority opinion does not define the contours of that exception and its application will likely have to be tested on a case-by-case analysis that will provide little advance notice to employers.

Finally, employers should anticipate that the new rule announced in Purple Communications — in conjunction with the Board’s previous decisions finding employee’ Facebook and other social media posts protected under the NLRA — will invite further discussions and criticisms by employees. Whether these discussions constitute protected activity under the NLRA or unprotected “rants” must be evaluated on a case-by-case basis.

©2022 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume IV, Number 364

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Greenberg Traurig's International Trade & Investment Practice provides clients with guidance on global trade policies and remedies, as well as advocacy in negotiations and trade dispute proceedings. As strategic advisers, we assist clients in both sustaining and enhancing their competitiveness in the ever-changing world economy, with a focus on trade regulations and transactions, import and export controls, Foreign Corrupt Practices Act (FCPA), customs, intellectual property, and tariff issues. We aim to keep clients current on the many crucial facets of...