“Back in the Day, ” as my daughter calls it, we wrote letters and sent them by “snail mail.” That has changed. Email has replaced the letter as the preferred method of business communication it will probably remain that way unless the Postal Service can figure out how to deliver letters to my iPad and iPhone. Email is fast, convenient, and doesn’t kill trees (at least in theory).
“Back in the Day”, that is before Gmail and “the cloud”, business email was hosted almost exclusively on the employer’s server(s). Its convenience led to abuse. Employees could and often did use email to conduct personal business and, sometimes, to send inappropriate communications to others. These were the same problems that existed when the letter was the predominant form of communication, with one exception, email made it easier for employees to look like they were working when, in reality, they were sending jokes or pictures to friends, circulating their March Madness picks, or planning an after work get together. These abuses, led employers to adopt email policies in employee handbooks that prohibited the use of the company email system for activities that were not business related. For many years that’s been the rule in businesses of any size.
Enter the NLRB. Yes, the National Labor Relations Board. Yes, I understand you may have a non-union workplace but your business is still impacted by the NLRB. Under Section 7 of the National Labor Relations Act, employees are protected if they are engaged in “concerted activities for the purpose of collective bargaining or other mutual aid or protection…” Put another way, employees are protected from retaliation if they are acting to improve wages and other terms and conditions of employment. That means the NLRB can address the actions of an employer that restricts or enacts policies that have a chilling effect on Section 7 rights.
Which brings us to the NLRB’s recent decision in Purple Communications that has caused such an uproar in the business community and made employers see red. Purple Communications provides sign language interpretive services. It, like most companies, prohibits the use of the company email system for non-business purposes, for communications with organizations that have “no professional or business affiliation with the Company,” and from sending uninvited email of a personal nature. This policy was challenged by the Communication Workers of America(“CWA”). According to the CWA, the prohibition against using email for non-business reasons, violated the right of Purple Communications’ employees to engage in protected “concerted activity.” While this argument did not fly when made to the Administrative Law Judge, the NLRB reversed the Administrative Law Judge and ruled that employees have the right to use employer provided email systems to engage in activities that are protected under Section 7. In its holding, the Board concluded that email, given its common use in the business world, allows employees to effectively exercise their Section 7 rights in the workplace. What makes this decision a head scratcher is that the Board failed to take into account how email works and rejected the notion that employees have other effective ways of communicating (gmail accounts, Twitter, LinkedIn, Facebook, etc.)
Granted the decision is limited to the use of the company email system during non-work time and to employees who are given email access as part of their job. The problem is that it fails to recognize how email works. As an employee, I may send an email to coworker when I am off work or on a break. When my coworker receives my email, she may open it while she’s on the clock. Does that mean our employer can now discipline my coworker because she read my email on the clock? If our employer disciplines my coworker, will our employer face an NLRB charge or a wrongful termination lawsuit? We don’t know the answer to those questions. The Board, apparently in an effort to throw employers a bone, allowed employers to enforce a non-business use ban, under what it deemed “special circumstances” to “maintain production and discipline.” What it gave with one hand, it took away with the other, because the Board noted that such a ban would only be justified in rare cases. In plain English, that means you can impose a complete ban on non-business email but do so at your own risk. The reality is that email that is not business related does impact employee productivity. It does not wait to show up in your InBox when you are on a break, at lunch, or off work. It just shows up. Then it beckons to you, “Open me. Open me. Read me. Come on, it will take just a second…” More often than not you do not know from the subject line if it is work related. Heck, I’m still wondering if that guy in Nigeria, with the $64,000,000 wrongfully held by his bank, really needs my legal services.
The Board seemed to decide this case as if, aside from the company email system, the only other way for employees to effectively communicate was through smoke signals. I don’t know where the Board has been for the past decade, but the company email system is not the only game in town. Preventing the use of company email for non-business purposes is not going to stop employees from effectively communicating about the workplace. Unlike 1990, when you had to pay to have email (remember AOL, CompuServe, MSN), today anyone with a pulse can get a free email account. Most employees have smart phones with email and texting capabilities and even more have Facebook accounts that allow them to send private messages. The truth is that employees have more options than ever to communicate with their peers about workplace issues. This was a decision that NLRB did not have to make. Trust me, this is not the last time you will hear about this case.
Even though I disagree with the decision, employers need to take the decision seriously and implement changes to their policies and procedures. Here are 5 recommendations/take aways:
1. Make sure your email policy does not violate the holding of the Purple Communications decision. If it does make sure it is redrafted.
2. While the Board’s decision does not extend to text messages, instant messages, or other communications on an employer provided platform, it is clear where the Board is heading. My advice is to be proactive and ensure that policies that address communications on any employer provided device do not violate Section 7.
3. As the employer, you still retain the right to monitor email, however, you cannot increase the level of email monitoring because you think someone is engaged in concerted activity.
4. The decision does not require an employer to provide email access to an employee that does not use email as part of their job nor does it require you to give them email access to engage in “concerted activity.”
5. Consider defining what constitutes non-business use and rescind policies that prohibit the use of the company email system for solicitations. That probably means we are going to see a lot more email asking us to buy the latest fundraising item that our coworker’s kid is selling.
Stay tuned. I’ll keep you updated as this case goes up the appellate ladder.