Friday, April 3, 2015

NLRB Law Judge Affirms Employee Right to use Employer’s Email

We recently ran a serious of articles on changes being implemented by the NLRB that, in some instances, reverse established precedent.  For instance last December the NLRB, by a 3-2 decision, overturned a prior NLRB decision which had upheld employer policies prohibiting union organizing over company email.

Implementing this Board change in the law, an administrative law judge recently struck down an employer rule that prohibited employees from using business email to “engage in activities on behalf of organizations.”  The law judge said the prohibition was too broad and violated the National Labor Relations Act, 29 U.S.C. 151.  Purple Communications Inc. and Communication Workers of America, 2015 WL 1169344 (N.L.R.B. Mar. 16, 2015).

The employer argued that allowing blanket use of emails by employees “on behalf of organizations” may introduce computer viruses to the system.  The administrative law judge said these concerns could be addressed by software programs and rules more specifically targeted to downloading external content.  

While Illinois Labor Boards have not adopted the new NLRB position on use of an employer’s email system, it is not unlikely to do so if and when confronted with the issue.  Employers should review their email policies to make sure the policies do not prohibit employee organizing rights.  Also, care should be taken when disciplining an employee for violation of an existing email policy.  That existing policy may now be considered invalid if it is a barrier to employees exercising rights under state labor law.