NLRB Gives Employees the Right to Use Company Email for Protected Communications

Monday, December 22, 2014

Breaking new ground, the National Labor Relations Board ruled last week that employees have the right to use company email during non-working time to communicate about the terms and conditions of their employment. The Board’s decision in Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014),  overturns its 2007 decision in Register Guard, which held that employees generally do not have a right to use company email for communications protected under Section 7 of the National Labor Relations Act. Our previous posts on the Purple Communications case are here and here.

At issue in Purple Communications was an electronic communications policy that prohibited employees from using their employer’s email system except for “business purposes.” The employees worked as interpreters at various call centers and used company-provided email accounts in the course of their work. The union representing the employees claimed that the business-only email policy was unlawful on its face because it interfered with the employees’ ability to engage in union organizing efforts.

Reversing its holding in Register Guard, the Board found that it had struck the wrong balance in that decision between the rights of employees to engage in Section 7 communications and the property rights of employers in their electronic communications systems. Striking a new balance, the Board held in Purple Communications that employees who have been given access to a company email system have a presumptive right to use the system to communicate about the terms and conditions of their employment during non-working time. According the Board, a company may rebut the presumption and justify a total ban on non-work email by showing that “special circumstances” make the ban necessary to maintain production or discipline. However, absent these special circumstances, employers may impose uniform controls over their systems only to the extent that the controls are needed to maintain production and discipline.

The Board’s decision in Purple Communications leaves a number of questions unanswered, including what showing will be required to demonstrate “special circumstances” justifying a total ban on non-work email use. In addition, because the decision is limited to employee use of company email systems, questions remain as to what restrictions may be permissible concerning the use of other electronic communications systems. What is clear, however, is that with the decision in Purple Communications, the Board is taking very seriously its responsibility to adapt the NLRA to what it has described as the “changing patterns of industrial life.”

Consent is Key for BYOD

Friday, December 12, 2014

With Black Friday behind us and holiday shopping still heating up, ‘tis the season when many of us will acquire new gadgets and technology to power our digitally-enhanced lives.  For businesses, this time of year also means thinking about how best to accommodate employees who want to use their personal smartphones, tablets, or other electronic devices to connect to company networks.

BYOD (“bring your own device”) programs offer benefits to both employers and employees.  Employers, for example, benefit from reduced IT costs associated with providing expensive technology to employees, while employees benefit from the freedom to choose their own devices for work and play.   Yet the ability to access both work and personal content on a single employee-owned device presents some challenges, particularly with respect to data security and privacy.  On occasion, an employer may need to access an employee’s personal device to protect company information, such as when the employee departs or the device is lost or stolen.  However, if the employer does not have explicit authorization from the employee to access the device, it may end up having not only a disgruntled employee, but potential liability as well.

As a case in point, last month a federal district court in Texas ruled on claims asserted by an employee that his former employer violated the federal Computer Fraud and Abuse Act (“CFAA”) and other federal and state laws when it remotely accessed his personal smartphone and deleted all data on the phone, including personal and professional data, without his consent.  The employee in the case, Rajaee v. Design Tech Homes, Ltd., claimed damages to the tune of $105,100 attributable to his lost passwords, contacts, and photographs.  In this case, the court found these damages were not compensable under the CFAA on the grounds that the act covers only losses associated with investigating or responding to a violation of the act.  Because Rajaee did not produce evidence of any costs incurred to investigate or respond to the deletion of his data, the court concluded he had no losses under the CFAA, and therefore no claim.  Of course, had Rajaee established that he did incur such costs, the result in this case may very well have been different.

So, what does this mean for employers implementing BYOD programs?  At a minimum, it means that employers providing BYOD access should have policies in place describing the circumstances under which it may be necessary to access personal content on an employee’s personal device.  To allay legitimate privacy concerns, the policy should provide specific examples of when such access may be necessary, including situations involving lost or stolen devices, or technical support.  With an effective BYOD policy in place, employers should then require employees to provide written consent to the policy.

Does a Request for Disability Benefits Qualify as a Request for an Accommodation of Leave Under the ADA?

Tuesday, December 2, 2014

Last month, the Sixth Circuit Court of Appeals answered this question in the negative and found that an employee’s request for long-term disability benefits did not amount to a request for a reasonable accommodation in the form of leave.  As a result, the Sixth Circuit held that the employee’s failure-to-accommodate claim under the ADA failed where he could not point to any other evidence showing that he actually requested leave as a reasonable accommodation.

The employee in this case, Judge v. Landscape Forms, Inc., injured his arm while working at home.  The injury required surgery and the employee, Judge, was told by his doctor that the recovery time would be approximately four to six months.  In May 2011, Judge requested and was approved for FMLA leave until early August 2011.   During his leave, he also applied and was approved for long-term disability benefits beginning in July 2011.

Shortly before he was due to return to work, Judge informed Landscape Forms that he could not yet use his arm and that he would need six weeks of therapy.  He provided Landscape Forms a set of work restrictions, but he did not follow up or return to work after Landscape Forms asked for more clarification regarding the restrictions.  In late September 2011, Landscape Forms contacted Judge seeking information on his work restrictions.  Judge responded by faxing a note from his doctor with new work restrictions, but the note did not include any information as to Judge’s estimated date of recovery.  After receiving the doctor’s note, Landscape Forms terminated Judge on the grounds that it needed to maintain staffing levels and could not leave his position open indefinitely.   Judge was subsequently cleared to return to work without restrictions in November 2011.

Judge claimed that Landscape Forms discriminated against him and failed to accommodate his disability by not granting him leave until mid-November 2011.  The key issue for the Sixth Circuit was whether Judge actually requested leave as an accommodation and, if he did, whether the request was reasonable.  The court acknowledged that there is no “bright-line” test to determine when an employee’s request is sufficiently clear to qualify as a request for an accommodation.  However, on the facts of this case, the court found there was no evidence that Judge had ever made any statement that could be construed as a request for leave until mid-November 2011.  Although Judge argued that his request for long-term disability benefits constituted a request for an accommodation of leave, the Sixth Circuit disagreed.  Because Judge’s disability claim was processed through a third-party, which did not provide any information to Landscape Forms about the claim other than its approval, the Sixth Circuit found the request was insufficient to put Landscape Forms on notice that he was requesting leave as a reasonable accommodation or that he was seeking leave until mid-November 2011.

Given its finding that Judge never actually asked for additional leave as an accommodation, the Sixth Circuit did not reach the issue of whether the request would have been reasonable if properly made.  Had it reached this issue, the court might have had an opportunity, like the Tenth Circuit’s recent decision in Hwang v. Kansas State University, to provide additional commentary on when a request for additional leave is reasonable under the ADA, and when it is not.  Obviously, this additional commentary will have to wait for another occasion.