Recent NLRB Decisions On Email And Protected Activities

Recent NLRB Decisions On Email And Protected Activities

A recent National Labor Relations Board (NLRB) decision affirmed the Board’s position on employer email policies under the National Labor Relations Act (NLRA).   In Purple Communications, Inc. and Communications Workers of America, AFL-CIO the Board held that employees who may use their employer’s email system for work-related communications have the right to send off-the-clock email communications through their work email system that are protected under the NLRA.  The Act applies to most employees in the private sector, regardless of whether they are unionized, and gives employees the right to participate in activities or communications that are for their mutual aid or protection regarding the terms and conditions of employment.  This could include complaints about management, wages, shift schedules, or safety concerns.

In Purple Communications, employees were provided a work email account and these accounts were accessible from the employee’s work station, home computer, and smart phone.  Employees used the email account to communicate with other employees and with their managers.  The employer had a strict internet policy that prohibited employees from using the email system for nonbusiness purposes at all times.  The Board found that this policy was overly broad and unlawfully interfered with the employee’s use of the email system for protected communications under the NLRA.  The Board ordered that the policy be changed to allow for such protected communications during non-working time.

In another recent NLRB decision, an administrative law judge held that employees were wrongly terminated for agreeing with a critical email sent by another employee to management.  In Mexican Radio Corp., several non-unionized employees at New York restaurant Mexican Radio had been meeting and communicating via email about work schedules, tip distribution, poor treatment of employees, and health concerns.  One employee resigned from her job as a bartender and server and sent an email to the restaurant’s managers, owners, and serving staff.  This email contained very critical comments about the restaurant’s management.  Several serving staff employees responded positively to this email, and those responses were sent to everyone on the email, including the managers and owners of the restaurant.  The owners of the restaurant found the email “deeply insubordinate” and later said they wanted to meet with the servers on an individual basis.  Each of the employees who expressed agreement with the email were subsequently fired.  The administrative law judge found that the servers were engaged in protected activity under the NLRA.  The judge found that the critical email and the others’ assent was the “culminations of the complaints” made by the servers and that their discharge was the result of agreeing to the email.

These two cases are a reminder to employers that the NLRA applies to non-unionized employees and that employees have the right to engage in protected activity.  In light of the opinion in Purple Communications, employers should examine their email policies to ensure that it does not run afoul of the Board’s decision.  And Mexican Radio Corp, is a reminder that employees may not be terminated for engaging in protected communications and activities under the NLRA.

Some of these policies may shift in the coming months and years as President Trump appoints new members to the Board.

Contributor: Michelle L. Covington, Attorney at Law | Weintraub Tobin