Further Insights: How The Recent Barbulescu Decision Impacts Employers In Europe And The United States

Last month, we blogged about the much discussed ECHR Barbulescu opinion. (To review the implications of the case, please click here.) As a follow up, we wanted to provide further insights to multi-national employers about how this European decision compares to the position in the United States.

Purple Communications, Inc.: the United States' approach to Email Monitoring

In the U.S., an employee's freedom of expression, even when using an employer-provided email, has been closely guarded in recent years by the National Labor Relations Board ("NLRB") under Section 7 of the National Labor Relations Act. Section 7 protects any employee when they engage in "concerted activities for...mutual aid or protection." The NLRB has made clear that certain company policies that seek to limit social media and electronic communications could infringe on these rights, or "chill" concerted activities, and are therefore prohibited (for a full review of prohibited social media policies, see here, here, or here).

In December 2014, the NLRB encountered a similar policy to the one in Barbulescu. The case, Purple Communications, Inc., asked the Board to decide whether a newly introduced policy that required company electronic systems and equipment to "be used for business purposes only" violated Section 7. The Board held that introducing a blanket prohibition against employees using company electronic systems and equipment for private purposes violated Section 7. The Board held that introducing such a blanket prohibition would chill the rights of employees to engage in concerted activities. Importantly, this decision was limited to employees who already had access to an employer's email for business purposes, and noted that employee use can still be subject to "reasonable" restrictions (e.g., prohibiting work-time use of equipment for personal purposes, or sending oversized attachments). The decision did not address the issue of whether a new policy which imposed a blanket ban on using...