Archbright™ Insights January 2015

JANUARY | 2015 Newsletter

Employees May Use Employer’s Email System to Organize

ban necessary to maintain production or discipline. Significantly, the NLRB expressly advised that cases involving such special circumstances justifying a total ban would be “rare.” 3. Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline. 4. It does not require email access or access to any other type of electronic communications systems be given to nonemployees. 5. An employer’s ordinary monitoring of the electronic communications on its email system (which does not discriminate against unionization) remains lawful. What To Do Now • Modify your existing email access policies which universally prohibit nonwork related use of company email systems to conform with the Purple Communications holding. • Notify your employees and update email policies confirming that the company reserves the right to monitor computer and email use and employees have no expectation of privacy in their use of company computers/email. • Ensure processes are in place for the regular, nondiscriminatory monitoring of employee usage, for purposes such as ensuring productivity and preventing harassing or inappropriate conduct. • Evaluate work operations and the access to email you provide to employees and assess whether some level of restriction of email access on nonworking time could be justified given special circumstances making such a restriction necessary, for example, to maintain production, discipline or some other interest. The employer must be able to first articulate an interest and then be able to demonstrate how that interest supports the email use restriction. • Evaluate the granting of email access to each of your departments within the company in the first place and whether the granting of email access for certain departments is helping the objectives of the business.

You learn your employees are trying to form a union and that your company email is being used as a means to set up organizing meetings by employees. Can you monitor the emails? Prohibit employee use of your email system? Prohibit use by union representatives? Before answering these questions, employers must understand a recent decision from the National Labor Relations Board (NLRB). On December 11, 2014, the NLRB ruled employees may use an employer’s email system for union organization – even on nonworking time. Purple Communications and Communication Workers of America (361 NLRB No. 126 2014) The National Labor Relations Act (NLRA) grants union and non-union employees a legal right to communicate with each other at work regarding unionization and working conditions, such as compensation, also known as “Section 7” rights or the right to engage in concerted activity. The NLRB stated employee use of email for concerted activities, including unionization e>orts, on nonworking time must be permitted by employers who have chosen to give employees access to their email systems. Until this ruling, an employer’s email system was regarded by the NLRB as employer-owned equipment, like copy machines, telephones, or bulletin boards, and the nonworking time employee-use of such equipment could be banned by an employer. (Register Guard NLRB 2007 - Employers may prohibit nondiscriminatory use of their equipment by employees for solicitation). However, the NLRB justified singling out employee use of email systems because Register Guard failed to protect employees’ right to organize and did not adequately reflect the current use of email as the “most common form of workplace communication.” This decision impacts every employer, union or non-union, that allows employees minimal use of employer email for personal use. The NLRB limited application of its decision as follows: 1. It applies only to employees who have already been granted access to the employer’s email system in the course of their work and does not require employers to provide such access. 2. An employer may justify a total ban on non-work use of email, including Section 7 use on nonworking time, by demonstrating that special circumstances make the

Archbright will have updated email polices available on its “Members Only” website very soon. Source: Archbright HR Advice & Counsel

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