Despite previous NLRB rulings telling them to stop, some employers continue to impose broad prohibitions on personal employee communications over company email. As an administrative law judge recently reminded us, failing to carve out email use exceptions for periods during which employees are not actually working will continue to violate the National Labor Relations Act and can result in significant costs for employers in remedying such non-compliance.
In Cellco Partnership d/b/a Verizon Wireless, No. 28-CA-145221 (September 18, 2015), an employee filed an unfair labor practice charge alleging that five separate provisions of the company’s Code of Conduct unlawfully interfered with the right of employees to engage in concerted activity in violation of the NLRA. Among other findings, the judge held that the restrictions relating to “solicitation and fundraising,” which prohibited employees from using the company’s communications system for distributing materials to one another even during non-working time, and the “prohibited activities” section, which could reasonably be read to authorize discipline of employees for using company email to communicate with each other on behalf of a labor organization, were overly broad and infringed upon employees’ NLRA rights. In particular, the judge criticized Verizon’s language prohibiting employees from using company email to communicate with each other on behalf of outside organizations in ways that might cause the company “embarrassment,” as this could have a “chilling” effect on activities the NLRA expressly protects.
The NLRB’s previous decision in Purple Communications (see below) placed employers on notice that they cannot completely ban all employee use of company email systems for purposes that, in management’s view, are not necessarily conducive to the organization’s business goals. The Verizon decision underscores this point and should further remind companies that ignoring the NLRB’s latest rulings and assuming their current policy language is “close enough” to the required standard is not a viable option for employers seeking to avoid NLRB charges and all their attendant negative consequences.
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