Is Your Company Email Policy Violating Employees’ Federally Protected Rights?

Posted by Lida Bannink, Labor & Employment attorney, October 4, 2017.

Virtually all employers maintain policies regarding the use of company email. Often these policies restrict the use of company email for only business purposes.  While this seems reasonable on its face, a recent decision from the National Labor Relations Board (NLRB) indicates an employer maintaining a policy such as this may open itself up to an Unfair Labor Practices charge under the National Labor Relations Act (NLRA).

The NLRA is a federal law enacted in 1935 to codify and protect employees’ rights to engage in organizing, unionizing, and collective bargaining. Section 7 of the NLRA provides that, “employees shall have 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 for protection…”  Employers are prohibited from interfering with these rights pursuant to Section 8(a)(1).

In its recent decision, Purple Communications, Inc., and Communications Workers of America, AFL-CIO, the NLRA was asked to determine whether an employer’s email restriction policy violated the employees’ Section 7 rights. The case involved a company, Purple Communications, who maintained a policy that all electronic equipment, “should be used for business purposes only” and prohibited employees from “engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company… [and] sending uninvited email of a personal nature.” The policy was enacted to protect against potential computer viruses and to prevent the transmission of inappropriate information and the release of confidential company data.

In analyzing whether the policy infringed on an employee’s Section 7 rights the NLRB held “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their e-mail systems.” The Board also concluded that employees have a presumptive right to talk to each other for Section 7 purposes via work email on non-work time unless the employer can demonstrate “special circumstances” that would justify a total ban on non-work use of email. The NLRB did not specify what “special circumstances” may be and Purple Communications, Inc. did not attempt to establish any to overcome the presumption. However, the NLRB did indicate that “it would be the rare case where special circumstances justify a total ban on non-work email use by employees.”

Purple Communications, Inc. highlights the importance for an employer to closely analyze handbook policies ensuring each policy is tailored to the specific needs of the company while also balancing the rights of its employees. When creating or reviewing an employee handbook, some important questions to ask are: Why does the company need this policy? What information are we trying to protect? Is this policy too broad or narrow to accomplish our goals?  Finally, are we balancing our needs with the rights of employees? If you find that your policies are not accomplishing your goals, are too narrow or broad, or are not considering the rights of employees, it is time to reevaluate your handbook. 


ABOUT THE AUTHOR

Lida Bannink is the lead employment law attorney at Eckberg Lammers. Lida represents businesses and management in labor, employment, and business law matters. She may be reached at 715-386-3733 or lbannink@eckberglammers.com.

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