Thursday, December 18, 2014

Electronic Communications Policies in Light of Purple Communications

As has been reported previously in The Workplace Report, the National Labor Relations Board held last week in Purple Communication, that, absent special circumstances justifying restrictions, employers are required under the National Labor Relations Act to allow employees to use employer-provided electronic communications (e-mail) systems to communicate among themselves and with non-employees regarding matters falling within the scope of the term “protected concerted activities”.  Such activities include, but are not limited to, union organizing activities.  

While there has been no similar ruling as yet from the Illinois Labor Relations Board or the Illinois Educational Labor Relations Board, it is reasonable for Illinois public employers to plan for the eventual adoption by these agencies of a Purple Communications-type rule.  While some employers may choose to wait until there has been an actual ruling, there are steps that employers can take now to anticipate a Purple Communications ruling without undue interference with their ability to regulate their electronic communications systems.

The focal point of Purple Communications was the employer’s electronic communications policy.  While employers can adopt ad hoc policies, most employer policies are contained in personnel manuals and employee handbooks.  Most personnel manuals contain  electronic communications, computer systems, internet use, and/or social networking policies.  In Purple Communications, the subject policy prohibited employees from using the company’s e-mail and voice mail systems to participate in “activities on behalf of organizations or persons with no professional or business affiliation with the Company”.  Similar types of restrictions on the use of employer communications systems exist in many employee handbooks issued by Illinois public employers.

One way for Illinois public employers to deal with an anticipated Purple Communications rule would be to modify their employee handbooks now.  Two simple additions might be sufficient.  First, the handbook could be modified to state, at the beginning of the electronic communications and/or social networking policy, that “this policy shall not be interpreted as interfering with the legal right of employees to engage in concerted, protected activities during non-working time”.  Second, when stating any specific prohibition on the use of computer equipment, the internet, or e-mail or voice mail systems, the handbook could be modified to state that the prohibition applies “except as permitted in the course of exercising a legal right or as part of an employer-authorized communication”.  

These “savings clauses” may, in proper context, protect the employer in the event of an attack on restrictive use policies that are generated primarily for legitimate business reasons, such as requiring that employees’ work time be used for work and protecting the computer system from unauthorized uses that could jeopardize the system, but that could be the subject of legal attack if phrased too broadly.   Because policies vary greatly, however, public employers are urged to seek legal advice in order to insure that any contemplated handbook changes are both legal and sufficient, and that they do not deprive the employer of its legitimate rights to control and safeguard its electronic communications systems.