United States: NLRB Judge Allows Employers To Continue Restricting Employee Use Of Company Email

On October 24, 2013 National Labor Relations Board ("NLRB") Judge Paul Bogas issued a decision regarding employer policies that restrict employees' email usage. The Communications Workers of America had filed unfair labor practices charges against Purple Communications, Inc., which provides communication services for deaf and hard of hearing individuals.

The CWA alleged that two of Purple's policies violate Section 8(a)(1) of the National Labor Relations Act ("NLRA") because they interfere with employee rights under Section 7 of the Act to engage in protected concerted activity.

One of the policies at issue prohibits employees' use of company equipment, including computers, internet and email systems, for anything other than business purposes. Specifically, employees are prohibited from exchanging emails with individuals with no professional or business affiliation with the company. The NLRB General Counsel argued that this policy is overly broad and violates the NLRA. She further argued that the NLRB's 2007 Register-Guard decision, which held that employees have no statutory right to use their employer's email system for Section 7 purposes, should be overruled because of the increased importance of email as a way to communicate. Upholding Purple's policy, Judge Bogas stated that he was bound by Register-Guard, which only the NLRB can overrule.

The judge did, however, find that another challenged policy violated the NLRA. A separate provision of Purple's employee policy prohibits employees from "causing, creating or participating in a disruption of any kind during working hours on Company property." Judge Bogas held this prohibition to be overly broad and vague because employees could interpret it to restrict protected Section 7 activity, even though it does not explicitly restrict such activity. The judge found this policy overly broad "because [it] does not define or limit the meaning of 'disruption' or state that it is not intended to refer to Section 7 activity."

Either side can challenge the decision, which would then go to the NLRB in Washington, D.C. This ruling should serve as a reminder for employers to have clear employee policies that they review carefully and frequently.

Originally published on the Employer's Law Blog

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.