Employers Cannot Ban Email Solicitation Based on Safety Concerns during Non-Working Time

In a much-discussed decision, the Board decided that employees with access to an email system for work purposes have a right to use that email system on non-work time for communications protected by the National Labor Relations Act. [See our prior summary of the decision in Purple Communications in “NLRB to Companies: Your Workers Can Use Your Email System for Union Organizing”]  In other words, employees can use their employer’s email system to engage in pro-union activity, including organizing activity. Policies that prohibit such email use are presumptively illegal unless the company can show special circumstances for restricting employees’ access to the system.

Recently, a hospital had a solicitation rule that provided “staff members may not use [company] electronic messaging systems to engage in solicitation.” The hospital argued that its policy was justified by the “special circumstances” of the healthcare institution. Specifically, the hospital cited to studies finding that there is a correlation between employee distraction and patient safety and identified computers as sources of distraction. The NLRB did not buy this argument. While the Board agreed that sending emails during working time may be distracting and negatively affect patient care, it found that such concerns were not present during non-working time. The Board suggested that the hospital could revise its policy to apply solely to working time.

Employers are still questioning what “special circumstances” can overcome the Board’s presumption that employees can use company email to engage in union activity. The concern that employees will be distracted by the email system is not sufficient. Companies should be sure to review their email policies to verify compliance with Purple Communications.

Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at maustin@ralaw.com.