Over the last two weeks Western North Carolina has experienced a lot of inclement weather closing and delaying school systems and many businesses. My children actually started hoping that it would NOT snow again…this is either a symptom of getting tired of one another or the many walks up and down our long driveway when the cars can’t make it. In any event, I know many of us are hoping we have salted, shoveled, and sat in the car pool line at 10:30 a.m. for the last time this season.
With all of this inclement weather, many employers were faced with questions from employees about working from home, including use of company email. While the question of allowing employees, particularly non-exempt employees, access to work from home is always a difficult one, a recent National Labor Relations Board (“NLRB”) decision makes the answer even trickier than before.
Many of you may be saying, “Well, wait a minute, we don’t have a union, I don’t need to be worried about the NLRB or the National Labor Relations Act (“NLRA”).” Unfortunately, you do. The NLRA, which is interpreted by the NLRB, prohibits employers, whether unionized or not, from taking actions that prohibit employees from discussing the terms and conditions of their working environments or from otherwise engaging in organizing activities. For example, employers cannot prohibit employees from sharing information about their own compensation and benefits with other employees.
What does this have to do with email? In late December, the NLRB issued a ruling in Purple Communications that when employers give access to their email systems to employees, employers must allow employees to use the email systems for protected activities under the NLRA during nonworking time, unless there are “special circumstances.” The NLRB did not define “special circumstances” but stated that it anticipated “it will be the rare case where special circumstances justify a total ban on nonwork email use by employees.”
This is a startling change in the law for employers to consider, and the NLRB’s decision is important both for what it did and didn’t do.
First, the decision does not require employers to give email access to all employees. It only applies to those employees to whom the employer chooses to give access.
Second, the NLRB’s decision permits employers to apply uniform and consistently enforced controls over its email system where the controls are “necessary to maintain production and discipline.” This provision will likely be the source of further litigation, but it appears to allow employers to continue to prohibit employee use of email during work time so long as the prohibitions are enforced consistently regardless of the non-work related content.
Third, the decision also suggests that the NLRB will consider whether employer monitoring of email use by employees during work time is in compliance with the NLRA. Specifically, employers may monitor email use provided that the monitoring is in place before a union campaign and does not target protected activity.
This decision is likely to be challenged in federal court. But in the meantime, employers should check their current email policies and practices and consider the following:
1. Does the company currently grant unnecessary email use to employees? Are there positions for which company email access is not required? If so, the company may consider eliminating that access. The NLRB’s decision does not require that the company give access to all employees.
2. Does the policy currently prohibit all non-work related uses? If so, you should consult counsel about appropriate modifications.
3. Do non-supervisory employees have access outside of the office/working environment? As this decision is litigated through the courts, the type of access an employee has may well become key in making determinations about the appropriate level of non-work use allowed. Employers would be wise to reconsider policies or practices that grant access for non-supervisory employees away from the working environment, including during inclement weather.
4. Does your policy currently allow for monitoring of company email use on working time? Does your policy tie prohibited uses to the functioning of the email system or other reasons not related to protected activity?
5. Keep your eyes and ears open for interpretations and changes to this decision…
And THINK SPRING!