Bruce Cross: New NLRB Decision Gives Employees Free Rein Over Employer Email

Editor’s note: The author of this guest commentary, J. Bruce Cross, is a director with the Little Rock-based law firm Cross, Gunter, Witherspoon & Galchus, P.C.

In recent years, the National Labor Relations Board (NLRB) has increased scrutiny of union and non-union workplace policies under federal labor law.

Company policies dealing with social media, non-disparagement, workplace courtesy and confidentiality have been found to be unlawful by restricting employees’ rights to engage in protected concerted activity (Section 7) under the National Labor Relations Act (NLRA). Until recently, scrutiny from the NLRB only concerned the particular employment policy at issue. However, the consequences of the NLRB’s latest decision in Purple Communications, Inc. are far reaching and will impact nearly every employer.

The Board issued a charge against Purple Communications, Inc., a deaf and hard-of-hearing communications technology company based out of California, alleging, among other things, that its company email policy was overbroad and unduly restrictive to its employees’ ability to discuss working conditions and terms of employment. Without deciding whether the email policy at issue was unlawful, the NLRB overruled prior precedent and announced a new game-changing rule regarding employee use of employer-owned email systems.

Specifically, the NLRB held that employees who have been granted access to their company’s email systems must be allowed to use them to engage in protected Section 7 communications during non-working time.

The NLRB indicated that employers may apply uniform and consistently enforced controls over email systems “to the extent that those controls are necessary to maintain production and discipline,” and that there may be rare situations “where special circumstances justify a total ban on non-work email use by employees.” However, any such restrictions would have to be weighed against an employee’s right to engage in protected speech.

The Board was quick to point out that its decision in Purple Communications, Inc. cannot resolve all the questions that will arise as a result of its newly established rule and inevitable future advances in technology.

Furthermore, the decision did not address the applicability of this standard to non-employee third parties. That issue will likely be addressed at some point in the future.

Now that the Board has adopted its new rule mandating that employees be allowed to use company email for protected personal communications, employers should take steps to ensure that their email policies comply with the NLRB’s holding in Purple Communications, Inc. In addition, employers should expect other inevitable issues to develop as they begin implementing the new rule.

Unfortunately, expected issues and questions will go unresolved until the NLRB or the courts issue further guidance. Until then, employers should begin by considering the following concerns and discussing potential compliance strategies with qualified labor counsel:

· Storage Capacity. If employees are allowed to use company email systems for personal communications, the “documents” retained on company systems could dramatically increase and exceed available storage capacity. Would employers be responsible for bearing the cost of storing personal emails and, if so, would the costs of maintaining personal emails have to be treated as taxable income to the employees? Alternatively, would employers be held responsible for purging a personal document containing protected speech? How does one distinguish protected and unprotected emails and how long must protected emails be retained? If an employer’s current practice is to purge cached emails after thirty days, must a six-month period be implemented to avoid a spoliation claim by a union, employee or the NLRB’s General Counsel? In addition, most companies have spam blocking software on their email systems to help protect the health of the system from viruses, etc. If the spam filter blocks an email due to a union flyer attachment, is this now an unfair labor practice?

· Monitoring of Computer Systems. Many employers have adopted policies prohibiting employees from misusing company computers (e.g., using company computers to engage in harassment, view pornography, run personal businesses or download pirated software). These policies often require IT supervisors and staff to regularly monitor employee use and report any violations. Could monitoring of employee email or internet usage in those situations be considered unlawful surveillance? Could monitoring of personal email also lead to common law claims for invasion of privacy?

· Litigation and E-Discovery. The burdens of maintaining email and other electronic records are considerable, particularly when records are pertinent to litigation. Who will bear the costs of looking through terabytes or petabytes of information to find the relevant emails? And what happens if the dispute is not between the employer and the employee, but is between the employee and a third-party? Can the employee be required to reimburse his/her employer for the cost of producing the employee’s personal email for use in a non-work related litigation?

These issues and many others have yet to be decided. Until then, employers will be left to make these decisions based on the little guidance available while waiting on direction from the NLRB and the courts. One thing though is for sure – namely, the NLRB’s relentless intrusion into business policies and practices will be a continuing source of concern in the years to come.