Virtually all employers maintain policies regarding the use of company email and internet. At first glance, these seem like sound policies to avoid issues with productivity, to protect against potential computer viruses, to prevent the transmission of inappropriate information, and to prevent the release of confidential company information. But how much can an employer truly restrict its employees’ use of company email and internet? The answer depends on the scope and reasoning behind the policy.
Perhaps one of the most common policies employers include in their employment handbook is a restriction on the use of company email and internet systems to workonly purposes, even during non-working hours. Unfortunately, for these employers, a recent decision by the National Labor Relations Board (NLRB) holds that such policies may violate an employee’s rights to organize, collectively bargain, and unionize, which are protected activities under the National Labor Relations Act (NLRA).
In the case of Purple Communications, Inc. and Communications Workers of America, AFL-CIO, decided March 24, 2017, the NLRB affirmed the decision of the administrative law judge holding that overly broad email policies prohibiting the use of company email or internet for any non-work-related purposes are presumed to interfere with an employee’s rights under Section 7 of the NLRA.
Section 7 of the NLRA grants employees 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 or protection.” Section 8(a) (1) of the NLRA prohibits employers from interfering with these rights.
The NLRB’s decision involved two separate locations of Respondent Purple Communications Inc., a company that runs video call centers for real-time sign language interpretation. In order to provide this interpretation service, the employees participate in oral conversations with hearing users and relay the conversation via sign language to the deaf participant on the video call. As part of their employment, each interpreter employee is issued a work email address which can be accessed from work, a home computer, or a personal cell phone. Employees generally use this email for communications among themselves and between managers and employees.
Purple Communications’ email and internet policy forbids employees from using email for non-work purposes, specifically stating that computers, email, and other company equipment is provided “to facilitate Company business” and that such equipment “should be used for business purposes only.” The policy contains the following specific prohibition:
Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other Company equipment in connection with … Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company.
Punishment for a violation of this policy consists of discipline up to and including termination. Purple Communications’ representatives testified that the policy is in place for typical business reasons including the prevention of contracting computer viruses, the prevention of inappropriate emails or other messages, and preventing the release of confidential company information. However, according to the administrative law judge, and affirmed by the NLRB, these reasons are insuficient.
The NLRB determined that the policy is broad enough to encompass an employee’s use of the email system for purposes of engaging in activities protected by Section 7 of the NLRA, thus creating a rebuttable presumption that the employer’s policy violated Section 8(a)(1) of the NLRA. Employers may rebut this presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights. To do so, employers must articulate the specific interest at issue and demonstrate how that interest supports the email use restriction.
In Purple Communications Inc., the respondent conceded that none of their concerns rose to the level of special circumstances that would justify the broad restriction, leaving us without any clear guidance from the NLRB regarding what would qualify as special circumstances.
So, without this particular guidance, how is one to advise business clients on the legality of their email and internet policies? A first step would be to review email and internet policies and ensure they are not overly broad. When creating or revising such policies, carefully tailor the language of the policy to ensure that the policy is supported by sound reasoning that is expressly related to specific production goals or disciplinary policies. Finally, in advising clients regarding their policies, it is important to be mindful of the NLRB’s commentary “that it would be the rare case where special circumstances justify a total ban on non-work email use by employees.”