ILMA Compoundings June 2017 - 36

WASHINGTON LANDSCAPE

Rethinking Employee
Email Policies
By Daniel Bryant

T

he National Labor Relations
Board (NLRB) recently issued
an opinion in Purple Communications Inc. (Purple) that affects
employers' email policies. Based on the
NLRB's decision, virtually all employers must rewrite their policies on
nonbusiness use of corporate email.
Purple provides real-time sign language interpretation during video calls.
Its employees communicate orally and
via sign language to enable discussions
between deaf and hearing participants.
The company provided computers that
were intended to be used solely for
work-related purposes, and each employee was assigned an email account.
Purple maintained the following
email policy in its employee handbook:
"Computers, laptops, internet access,
voicemail, electronic mail (email),
Blackberry, cellular telephones and/or
other Company equipment is provided
and maintained by the [sic] Purple to
facilitate Company business. All information and messages stored, sent, and
received on these systems are the sole
and exclusive property of the Company,
regardless of the author or recipient.
All such equipment and access should
be used for business purposes only.
"Employees are strictly prohibited
from using the computer, internet,
voicemail and email systems, and other
Company equipment in connection
with any of the following activities:
Engaging in activities on behalf of
organizations or persons with no professional or business affiliation with the
Company. Sending uninvited email of
a personal nature."
Employees in the California-based
offices of the company and their
union representative, the AFL-CIO,

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JUNE 2017

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challenged the restrictive email policy
as a violation of the National Labor
Relations Act (NLRA).
NLRA Section 7 states, "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 or protection,
and shall also have the right to refrain
from any or all of such activities ..."
Additionally, NLRA Section 8(a)(1)
declares it is an "unfair labor practice for
an employer to interfere with, restrain,
or coerce employees in the exercise of
rights guaranteed in Section 7."
During the proceedings, both Purple's CEO and vice president testified
that the email policy was implemented
to ensure that its computers were not
infected with viruses and that no confidential or inappropriate information
was disseminated.
The NLRB ultimately sided with
Purple's employees that the email
policy violated the NLRA. The NLRB
announced a new presumption that
"employees who have been given access
to the employer's email system in the
course of their work are entitled to engage in statutorily protected Section 7
discussions while on nonworking time."
An employer can rebut the presumption "by demonstrating that
special circumstances necessary to
maintain production or discipline justify restricting its employees' rights."
Under the NLRB's new standard,
an employer presumptively violates
the NLRA if it maintains a policy that
prohibits employees from all use of
company email during non-work time.

Importantly, the standard articulated
in Purple does not apply to employer
regulation of email usage during work
hours, and it does not mandate that
employers provide an email account to
all employees.
The NLRB decision does not apply
to other company technology; however,
the Board could take its reasoning in
Purple to expand the nonwork-time
use requirement to other technology.
Although the majority opinion
characterized its decision in Purple as
"carefully limited," the practical effect
is not. Virtually all U.S. employers,
including ILMA members, have based
their email policy on the premise
previously endorsed by the NLRB that
the employer owns the corporate email
system and has the right to ban or
regulate employees' non-business use
of that system in a nondiscriminatory
manner. Purple upends this premise.
While the NLRB expressly limited its holding to corporate email,
nothing in Purple suggests that the
Board would analyze differently other
types of employer-provided electronic
communications platforms.
The ruling has been working its way
through appeals processes, but for now,
ILMA members should review their employee handbooks or manuals to ensure
that their email policies are consistent
with Purple and consider whether to
analyze other types of employer-provided
electronic communications platforms
based on the NLRB decision.
Bryant serves as regulatory
counsel to ILMA through
Bassman, Mitchell, Alfano &
Leiter Chtd. He may be
reached at 202-386-7670 or dbryant@bmalaw.net.
http://www.ILMA.ORG
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