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Anyone with a smartphone has the ability to record sound and video. This can raise privacy concerns as well as create a record of events without others’ knowledge. For these reasons, companies may prohibit employees from making workplace recordings.   If your employee handbook contains such a rule, consider giving it a second look because the National Labor Relations Board (NLRB) recently struck down “no recording” rules implemented by Whole Foods.

A three-member panel of the NLRB reviewed two workplace policies: one prohibiting employees from making audio or video recordings of company meetings without prior management approval or the consent of all parties to the conversation, and the second prohibiting employees from recording conversations without prior management approval. The stated purpose of both policies was to foster open and honest communication, a free exchange of ideas, and an atmosphere of trust. Allowing employees to record conversations in secret, the policies explained, would deter employees from holding frank discussions about sensitive and confidential matters in the workplace.

The NLRB saw the “no recording” rules differently. In a NLRB Whole Foods Decision, the NLRB ordered Whole Foods to rescind the rules because they effectively violate employees’ rights under Section 7 of the National Labor Relations Act to engage in protected concerted activity. A majority of the NLRB panel expressed concern that the rule would prohibit employees from engaging in protected activities such as “recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions.” The majority noted that covert recordings were an essential element in vindicating Section 7 rights in many cases. The employer’s interest in encouraging open and frank communications did not override the Section 7 rights of employees.

One member of the NLRB panel dissented, arguing that employees would reasonably interpret the “no recording” rules to protect, not prohibit, Section 7 activity. However, the majority found the blanket prohibition on all recordings troubling. A witness for Whole Foods testified that the rules would apply “regardless of the activity that the employee is engaged in, whether protected concerted activity or not.” According to the majority, employees would reasonably read the broad and unqualified language of the rules to prohibit recording Section 7 activity.

The decision suggests that a “no recordings” rule that exempts protected activities could be valid. But where to draw the line between protected and unprotected activities remains an open question. Given the NLRB’s tendency to construe the scope of Section 7 activities broadly, a wide range of business discussions could be considered to involve protected activity and thus exempt from a “no recordings” rule. This would make the rule virtually useless. The NLRB’s decision may not be last word on recording rules, however, as Whole Foods has appealed the decision to the Second Circuit Court of Appeals.

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In 2007, the National Labor Relations Board (NLRB) issued its Register Guard decision allowing employers to prohibit employees from using company email to engage in discussions about the terms and conditions of their work with other employees or unions for purposes of “mutual aid and protection,” which are protected under Section 7 of the National Labor Relations Act. In April 2014, the NLRB issued a notice and invitation to the parties in a case involving Purple Communications, Inc. and interested amici curiae to file briefs on whether Register Guard should be overruled. The NLRB received numerous amici briefs on the issue. Employers were relieved when the NLRB deferred a decision on overruling Register Guard in September of last year.

The relief was short-lived. Just three months later, the NLRB reversed course and overruled Register Guard, noting that email “has become a critical means of communication” and is “a natural gathering place” for employees to communicate with each other. In a 3-2 decision involving Purple Communications, Inc., the NLRB ruled that employees who have access to their employer’s email system for work purposes presumptively have a right to use the system for protected communications on nonwork time.

Here are answers to some basic questions about how Purple Communications impacts company email policies:

Must employers give all their employees access to the company email system?

No. Employees have a right to use corporate email for protected communications only if they already are given access to the system for work or personal reasons. Purple Communications does not force employers to grant email access to anyone. For that matter, employers are not required to grant email access to non-employees, including unions and union organizers.

May employers put restrictions on use of company email for protected discussions during nonwork hours?

Maybe. Employers may restrict use of company email to engage in protected discussions during nonwork time by demonstrating that there are actual (as opposed to theoretical) “special circumstances” that “make the ban necessary to maintain production or discipline.” This appears to be a difficult standard to meet. Employers must establish a connection between the restriction and their interest in imposing the restriction.

Is it ok to ban all nonbusiness use of company email?

A total ban would be subject to the “special circumstances” test discussed above. According to the NLRB, the existence of special circumstances “will be a rare case.”

May employers impose guidelines on using nonbusiness of company email?

Yes. Employers may establish specific guidelines for nonbusiness use of corporate email.  Use of corporate e-mail for protected communications may be restricted to nonworking time. Employers also have the right to establish “uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.”  The single example provided by the NLRB is “prohibiting large attachments or audio/video segments, if the employer can demonstrate that they would interfere with the email system’s efficient functioning.”

May employers monitor their employees’ email use?

Yes. Employers may monitor computer and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for harassment or other activities that could give rise to employer liability. However, employers may not change their monitoring practices specifically in response to union or other protected activity. On that note, any modifications to an email policy that targets protected activity for discrimination is likely unlawful.

Do employers need to change their email policies now?

Purple Communications applies retroactively, so unless the decision is appealed and stayed in the interim, employers should seriously consider modifying their company email policy to comply with the decision.

Does Purple Communications apply to other company electronic communications systems like texting or instant messaging?

Currently no, but the NLRB has signaled that it might extend the reasoning in the Purple Communications decision to other forms of electronic communication in the future.

Prior Coverage:

Purple Haze: NLRB Still Unclear on Whether It Will Stop Employers From Limiting Use of Company Email to Business Purposes

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Federal law clearly gives employees the right to communicate with each other and with unions about work-related matters for purposes of “mutual aid and protection.” Commiseration among co-workers about working conditions, work policies, wages, and the like are concerted, protected activity under the National Labor Relations Act (NLRA).  But must an employer allow employees to use its computer equipment for such communications? Employers breathed a sigh of relief when the National Labor Relations Board (NLRB) answered “no” in its Register Guard decision issued in 2007. Under Register Guard, employees generally don’t have a right to use their employer’s electronic equipment and systems to engage in protected activity, and employers may adopt a policy prohibiting employees from using company email for non-work purposes, including communications concerning protected activity.

Seven years later, the Register Guard rule is cast into doubt. In Purple Communications, Inc., an employee handbook declared that all company computers, Internet access, voice mail, and the e-mail system were the exclusive property of the company and were to be used only for business purposes. The employer prohibited employees from using such company property to engage in activities on behalf of organizations or persons with no business affiliation with the company. Appling Register Guard, the Administrative Law Judge in the case dismissed a union’s claim that Purple Communications’ employee handbook violated the NLRA. The NLRB’s General Counsel appealed the decision, asking the NLRB to overrule Register Guard.

The NLRB invited interested groups to file briefs addressing whether the Register Guard rule should be overturned. Over twenty organizations representing a broad range of union and management interests accepted the invitation and filed amicus briefs with the NLRB. However, the NLRB ultimately chose to defer deciding the issue. See Purple Communications, Inc., 361 NLRB 43 (Sept. 24, 2014).

The NLRB decided the appeal without reaching the controversial issue of whether to overturn Register Guard because it found that the employer had committed other unfair labor practices. A footnote in the decision noted that the NLRB would “sever and hold for further consideration the question whether Purple’s electronic communications policy was unlawful.” This signals that the NLRB is still open to overruling Register Guard, perhaps when a case involving what it considers a more appropriate factual scenario comes along.

For now at least, employers may lawfully adopt work rules restricting use of its email and other electronic equipment and systems to business purposes, and employees may be disciplined for violating such rules. How much longer such rules will stand remains to be seen.

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In two weeks, the NLRB has issued just as many decisions agreeing with the positions of the NLRB’s Office of General Counsel (OGC) on employee social media use, as stated in the OGC’s well-known guidance memos.  On September 18, the NLRB invalidated Costco’s policy prohibiting employees from making statements on social media that could damage the company or other employees’ reputations.  Yesterday, the NLRB publicly released a decision weighing in on the BMW dealership case that was discussed in the OGC’s August 18, 2011 memo. (The decision and briefing in the case are available here).

Here’s a quick review of the case for those not familiar with it.  A salesperson at a BMW dealership posted photos on Facebook showing a car that a test driver accidentally drove into a pond in front of a Land Rover dealership across the street (who shares a common owner with the BMW dealership).  The employee  included mocking comments about the incident in the post.  That same day, the employee posted photos on Facebook depicting the low-quality food and beverages that the BMW dealership provided at a sales event to promote a new car model.  Again, the employee accompanied the photos with sarcastic remarks.  The employee was discharged for the Facebook posts regarding the Land Rover incident.  The employee claimed that the primary reason for his discharge was the Facebook posts regarding the sales event, which he argued was protected activity.

The NLRB agreed with the findings of the Administrative Law Judge (ALJ) that the discharge was based on the Land Rover posts, which were not concerted or protected activity because they were in no way connected to the terms or conditions of employment.  The ALJ’s decision also stated that the sales event posts could constitute concerted or protected activity because they could be construed as legitimate concerns about compensation.  Salespeople at the dealership were paid partly by commission, which are tied to sales.  Sales could be negatively impacted by damage to the reputation of the dealership due to the low-quality sales event.  The NLRB found it unnecessary to pass on the sales event posts, however, because the discharge was based on the Land Rover posts.

The NLRB also struck down a rule in the dealership’s employee handbook stating:

Courtesy: Courtesy is the responsibility of every employee.  Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees.  No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

The NLRB found the rule overbroad, as it could have the effect of prohibiting employees from making protected statements to other employees about their working conditions.  However, a dissenting member of the NLRB’s three-member panel found that the courtesy rule was “nothing more than a common-sense behavioral guideline for employees” and that “nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages)”.

LegalTXTS Lesson:  Here are three quick takeaways from the decision.

  1. Work rules regulating “offensive” social media activity should be vetted for any connection to concerted or protected activity, such as employee discussions about their compensation or the terms and conditions of their employment.
  2. “Courtesy” work rules similar to the one the NLRB struck down should be revisited to ensure they are specific enough to exclude protected activity.
  3. The positions taken in the OGC guidance memos are gaining credibility as the NLRB increasingly adopts those positions in published decisions.