Indirect discrimination – you know what they say about statistics

A labour lawyer will always get a little shiver of excitement when an employment matter makes it all the way to the Supreme Court. It is a bit like the Royal Family coming to visit your home town, an occasion for lots of fresh paint and bunting.

It should also mean that a significant point of our law is about to be affirmed or changed, so in the joined cases of Essop v Home Office (UK Border Agency) and Naeem v Secretary of State for Justice decided earlier this month, there was … well, mild disappointment, really. While quite interesting for lawyers, the decision does not provide much that will be hugely ground-breaking for employers in practice. The two cases relate to indirect discrimination, i.e. the imposition by the employer of a provision, criterion or practice (PCP) which disproportionately affects those with a particular protected characteristic, affects the claimant himself and cannot be justified, i.e. shown to be a proportionate means of achieving a legitimate aim.

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Carry On, Nurse? Rights to dismiss on grounds of uncertain identity

Ever think that you don’t really know your staff? Here is a case about how far that feeling can justify dismissal.

Elizabeth Ssekisonge gained indefinite leave to remain in the UK in 2000, qualified as a nurse in 2007 and started work with the Barts Health NHS Trust in 2011. In early 2007 she received a letter from the Home Office telling her that it believed she was not Elizabeth Ssekisonge born in Rwanda in 1960 but actually Mrs Noelita Kintu, born in Uganda in 1964. Having made this bold assertion, the Home Office then chose to do nothing about it until 2013 when it repeated the allegation, accusing Ssekisonge of lying to the authorities on her entry to the UK and therefore having obtained her British citizenship on false pretences. However, despite this, she was allowed to retain her indefinite leave to remain and hence the right to work in the UK.

Ssekisonge started legal action to challenge the loss of her citizenship but did not tell the Trust of these developments either when she was recruited or on the Home Office’s later contact with her, as her employment contract required. Ultimately it all came to the attention of the Trust through other means.

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California High Court Weighs In On Arbitration, Again

On April 6, 2017, the California Supreme Court issued its decision in McGill v. Citibank, once again striking out against arbitration agreements – this time declining to enforce a provision in a credit card account agreement which prevented the cardholder from bringing a claim for an injunction on behalf of the general public. The legal focus in the case was the enforceability of an arbitration agreement which by its terms purported to waive the plaintiff’s right to seek public injunctive relief in any forum. The High Court, found that such provisions are unenforceable as a matter of California law. The decision has attracted some attention in the employment law media but its actual impact on employment arbitration will likely be negligible. The kind of injunction at issue – public injunctive relief – rarely arises in employment disputes. “Public injunctive relief” involves orders that by and large benefit the general public and benefits the plaintiff only incidentally, if at all. Normally, employment actions, to the extent they include injunctive relief, involve “private injunctions” because the relief sought rectifies individual wrongs and only incidentally benefits the general public.

EU cases to retain role in UK employment law after Brexit, says new White Paper

Just in case you haven’t seen this from the new White Paper on the Great Repeal Bill (where have you been?), here are a few paragraphs on the intended post-Brexit influence of the European Court of Justice (CJEU) on English employment law:

2.12 The Government has been clear that in leaving the EU we will bring an end to the jurisdiction of the CJEU in the UK. Once we have left the EU, the UK Parliament (and, as appropriate, the devolved legislatures) will be free to pass its own legislation.

2.13 The Great Repeal Bill will not provide any role for the CJEU in the interpretation of that new law, and the Bill will not require the domestic courts to consider the CJEU’s jurisprudence. In that way, the Bill allows the UK to take control of its own laws. We will, of course, continue to honour our international commitments and follow international law.

2.14 However, for as long as EU-derived law remains on the UK statute book, it is essential that there is a common understanding of what that law means. The Government believes that this is best achieved by providing for continuity in how that law is interpreted before and after exit day. To maximise certainty, therefore, the Bill will provide that any question as to the meaning of EU-derived law will be determined in the UK courts by reference to the CJEU’s case law as it exists on the day we leave the EU. Everyone will have been operating on the basis that the law means what the CJEU has already determined it does, and any other starting point would be to change the law. Insofar as case law concerns an aspect of EU law that is not being converted into UK law, that element of the case law will not need to be applied by the UK courts.

2.15 For example, CJEU case law governs the calculation of holiday pay entitlements for UK workers: failure to carry across that case law would be to create uncertainty for workers and employers.  

This has a number of possible consequences:-

  • First, if the UK wishes to shed or amend any part of EU-sourced employment law, it is going to have to do so expressly and cannot just leave it to wither on the vine as no longer relevant;
  • Second, this snuffs out any lingering chance that Brexiting represents a reprieve for employers in the holiday pay cases.
  • Most significantly, the UK Government is going to have to work out what it does want to change in EU-derived employment legislation now that it will have the technical ability to do so. I have been asking that question of seminar audiences for most of the last 12 months on a decreasingly rhetorical basis and have yet to get an answer to it.  It is maybe for that reason that in his Foreword to the White Paper, Secretary of State for Exiting the EU David Davis says carefully that the Great Repeal Bill is “not a vehicle for policy changes” but will just give Government the “necessary power to correct or remove the laws that would otherwise not function properly once we have left the EU”, which in employment terms is basically none of them.  The Government will also be acutely conscious here of the tension between its repeated trumpeting of the merits of “taking back control” of employment law on the one hand and on the other, the twin imperatives of not upsetting either the remaining EU member states or the UK electorate by actually doing anything with it.
  • As we have said before in this blog, pretty much all the most inept employment legislation in the UK is home-grown – that would be a far better place to start than fiddling with former EU law just because you can. But let us try to start the debate – a small prize from employmentlawworldview.com awaits the best printable argument for the amendment of any specified piece of EU-derived employment law received by me by the end of May this year.

U.S. Appellate Court Declares That Title VII Prohibits Employment Discrimination Based On Sexual Orientation

On April 4, 2017, the United States Court of Appeals for the Seventh Circuit became the first federal appellate court to hold that discrimination on the basis of sexual orientation is a prohibited form of sex discrimination under Title VII of the Civil Rights Act of 1964 (Title VII).  And it did so in no uncertain terms.  This en banc decision – a decision made by the entire active bench of Seventh Circuit judges – was the Court’s second time hearing the Hively v. Ivy Tech Community College case.  In its initial run at the matter, the Seventh Circuit, by a panel of three judges, expressed that it was bound by the Circuit’s prior precedent that sexual orientation discrimination was not prohibited under Title VII.  In its opinion, the panel questioned the ongoing validity of that precedent, but noted that only the full court had the authority to overrule its past decisions.  Responding to this seeming invitation, Plaintiff Hively moved the appellate court to rehear the matter en banc, and the Court agreed to do so.

Accordingly, the full Circuit Court reexamined its precedent regarding the protection of sexual orientation under Title VII, and ultimately found it to be outdated in the context of the current legal landscape.  In her appeal, Hively posed two lines of analysis, both which she asserted led to the conclusion that sexual orientation discrimination is prohibited under Title VII.  The Seventh Circuit agreed on both fronts.  The first approach was the “comparative method,” an analysis in which the Court considered whether Plaintiff’s sex was the single factor upon which the alleged discrimination occurred.  In other words, were Hively male, but all other factors remained the same, including the sex of Hively’s chosen spouse, would she have been treated the same?  Hively asserted that, had she been a man married to a woman, her employer would have treated her more favorably.  This, the Court determined, was “paradigmatic” discrimination based on sex.

The second approach addressed by the Court was an “associational method.”  The Court remarked that it has long been established that discrimination against someone on the basis of their association with someone of a different race constitutes discrimination on the basis of race.  Sexual orientation discrimination is based upon the theory that a plaintiff is subjected to adverse circumstances due to his or her intimate association with someone of the same sex.  The Hively Court found there is no fundamental difference between race and sex discrimination claims, therefore, no justification exists to treat them differently in the associational analysis, and accordingly, sexual orientation discrimination is sex discrimination.

The Court further supported its outcome with other recent developments in the law regarding sexual orientation.  The Seventh Circuit cited the EEOC’s position that sexual orientation discrimination is sex discrimination under Title VII, but, notably clarified it did not feel obligated to defer to the EEOC.  The Court placed more weight on three recent decisions from the Supreme Court of the United States.  These three Supreme Court cases dealt not with discrimination in employment, but other fundamental liberties, namely the criminalization of homosexuality, exclusion of same-sex couples from coverage under certain federal statutes (as proposed in the Defense of Marriage Act), and most recently, directly addressing the right to marry.  In all three cases, the Supreme Court found that sexual orientation is an improper basis upon which individuals may be differentiated.  The Seventh Circuit found that the logic behind these cases, as well as the “common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex” required it to overrule its prior precedent.

Although this outcome is only binding within the borders of the 7th Circuit (Illinois, Indiana, and Wisconsin), plaintiffs are certain to test the Hively Court’s logic in the remaining Circuits.  However, they will do so amid existing, opposing Circuit Court authority.  Indeed, the Second Circuit came to the opposite conclusion just last week in Christiansen v. Omnicom.  In Omnicom, the Second Circuit distinguished between discrimination on the basis of a perceived gender stereotype and discrimination due solely based on the fact of someone’s sexual orientation.  Holding without significant comment that the latter is not a cognizable claim under Title VII, the Second Circuit held a plaintiff could, however, state a claim if he or she alleged discrimination on the basis of a specific characteristic not stereotypically associated with their gender (such was the case for Christiansen, who alleged he was perceived to be effeminate and submissive).  The Hively Court also addressed and spurned this distinction, finding the line between gender nonconformity claims and one based on sexual orientation “does not exist at all.”  The Omnicom majority opinion did not address the associational theory of sex discrimination claims taken up by the Seventh Circuit, but the Omnicom dissent, like the Hively Court, found that discrimination on the basis of sexual orientation is supported under both the comparative and associational analyses.

Hively marks a vast discrepancy among the Circuits, and accordingly, this issue is most certainly well-positioned for consideration by the U.S. Supreme Court.

Breakfast Briefing – UK Pension Scheme Management for Japanese Multinationals

We have partnered with LCP to hold a breakfast briefing for Japanese companies operating in the UK, to help them understand and fulfil their pensions obligations. The briefing will take place on Wednesday 10 May 2017 at LCP’s offices in London, from 8:30 – 10 a.m.

This event will be of interest to Japanese nationals who have been seconded to the UK or their UK-based colleagues who have operational responsibility in their role, which includes managing the UK pension scheme.

The seminar will look at:

  • Risks in your UK Defined Benefit schemes
  • The tools you need to identify de-risking opportunities, and how you can take these opportunities forward in your company
  • Client case studies that demonstrate successful plans

The event will be held in English with Japanese interpretation.

For more information, you can view the original invitation or register online.

Time to collect your thoughts on gender pay reporting

So the “new look” 5th April, how was it for you….?

Did you spend the day on “hold” as you scrabbled to use up your remaining ISA allowance? Were you locked in a room with your payroll provider getting all hot and bothered, or are you saving that for later in the month?  Or are you enjoying the spring sunshine, wondering what on earth I am talking about?

As of yesterday, of course, 5 April is no longer a “big day” simply by virtue of being the last day in the tax year. It is now also the annual “snapshot date” for the purposes of the new Gender Pay Gap Reporting obligations. From now on, UK employers having 250 or more employees will have to capture their payroll data for the payroll that includes 5 April each year and then both calculate and report on their gender pay gap statistics. The question is, are you ready?

According to research published by Totaljobs yesterday, the answer to that question for many is an unsurprising and resounding no.

Whilst there are some employers who are still blissfully unaware even that the new GPG Regulations exist, scarcely half of the employers which took part in the Totaljobs survey are “very confident” that salaries are equal across the genders.  This misses the point more than slightly, of course – given that there was a national gender pay gap of 18.1% in 2016 (down from 19.6% in 2015), it is reasonable to assume that many employers’ pay gap statistics will look very similar.   Some will be better, some much worse. There are numerous and sometimes complex reasons for differences in gender pay, none of which mean the employer is acting in any way unlawfully.  However, 51% of employers in the same survey also admitted they invested little in coaching management on gender pay and equality issues and that is clearly something that needs to change.

Although it is true that the reporting itself does not need to be done until April 2018, there are many good reasons to start your gender pay analysis sooner rather than later. Firstly, although the individual calculations themselves are easy enough to do, extracting the information you need from your payroll to do them accurately may not be.  Having worked with a number of clients on dummy runs of the reporting process, this is easier said than done, with the required data often having to come from a number of different sources/reports.

Secondly, depending on what your statistics actually look like, particularly when compared to the UK national and/or sector average, you may want time to analyse the results in more detail to try to better understand what they are telling you about pay, recruitment, retention and progression of men and women within your organisation. Are there any obvious pay disparities that have crept in between people doing the same job; or is it simply a question of there being more men than women in the most senior roles within your organisation?   The survey also indicated that about a quarter of employed women believe that men get paid more for the same job. It is our perception that like-for-like pay discrimination is now much less common than it was and therefore that employers will make far greater inroads into their pay gaps by focussing on the advancement of women up the ranks rather than fiddling with individual roles’ pay rates.

Whilst an organisation is unlikely to be pilloried for having statistics at or about the national or industry average, interested parties (employees, unions, shareholders amongst others) will nevertheless be looking to see an improvement in the position from one year to the next.  (Though NB there is at best a moral obligation here and no legal shame in not removing a pay gap if, seen at an individual and role level, there is no unlawful discrimination in your pay rates.  If a senior women resigns and is replaced on entirely justifiable grounds by a man, that may even knock your pay gap backwards, but it simply doesn’t matter legally so long as you can explain it).  That means it will be important to identify potential problem areas, to think about what strategic and policy changes might be required to support improved diversity and with that not only create the opportunity to narrow any pay gap but also enable you to develop a much clearer narrative around your reported statistics if you want one.   And given the time it takes for such changes to have any meaningful impact, the sooner you can do this, the better.

Squire Patton Boggs has a Gender Pay Reporting taskforce.  To receive our toolkit or to talk to us about how we can help you with your reporting obligations and how best to consider and analyse your data, please contact David Whincup, Janette Lucas or Clare McNicholas or your usual Squire Patton Boggs contact.

Treading the thin line between incompetence and discrimination

In a boost to the cause of inept line management everywhere, the Employment Appeal Tribunal held last month that it is not permissible to extrapolate without more from conduct which is unreasonable, incompetent and lackadaisical to that which is discriminatory.

The point is not wholly new. Back in 1998 the then House of Lords heard argument on behalf of a Mr Zafar that his treatment at the hands of employer Glasgow City Council had been so grim that it could be no longer a matter of mere ineptitude – to get things wrong on such a sustained and concerted basis, said Mr Zafar, the Council would really have to be putting its back into it, and the only reason for doing so that he could see was his race.  The Employment Tribunal had found no evidence that any of the comprehensive procedural  Horlicks which the Council had made of the disciplinary process was motivated by Mr Zafar’s race, but nonetheless found that because the Council had been unable to explain the mess on any other grounds, it was obliged to infer racial motives into his dismissal. The Lords disagreed – to shift onto the employer the requirement to explain even the most grievously mishandled termination process there still had to be something, almost however small, to justify the conclusion that it could have been discriminatory.  A very bad day for the Council witnesses (“Racially-motivated or olympically incompetent? Do take your time”), but ultimately “acquitted” on the not very attractive but presumably very common grounds that some incompetence is just incompetence and not the manifestation of conscious or unconscious bias.

Which brings us to Kent Police v Bowler in March.  Bowler brought a variety of claims against the Kent Force arising from its handling of certain race discriminations he had made, including that his original grievance investigation had been botched on racial grounds and that he had later suffered further disadvantage in retaliation for it. How about this for a rigorous and forensic examination of a race discrimination grievance: the investigating officer had “quoted the Oxford dictionary definition of racism to the relevant officers and they had all confirmed they were not racist. He confirmed he had not taken advice from HR about the nature of the grievance but had looked at the Race Relations Act, found it convoluted and so resorted to the dictionary. He had no training in considering grievances and had never done one before. His equal opportunities training was some time ago. He accepted that [Bowler] raised matters with him…about incorrect details that he failed to amend in the report and said this was because [I just love this bit] …it was better to get the grievance report out quickly than to take longer getting it right“.

However, although this clearly fell far short of reasonable management standards, there was no evidence that the investigator’s handling of it was biased, and so it was not permissible for the Employment Tribunal to have inferred racial motives purely from the “sheer incompetence” he had demonstrated.

But note that the “something” referred to above need only be very small. In considering another aspect of Bowler’s complaints, a different Officer’s report made irrelevant and misleading comments about a race discrimination claim brought not by Bowler, but by his internal representative, another ethnic minority Police Officer. Again, the relevant Detective Sergeant was conducting his first internal investigation, but here the Employment Tribunal found that the comments went beyond inexperience to evidence a pre-conceived view that ethnic minority Officers were over-sensitive and too keen to allege race discrimination without actual foundation.  That was enough to shift the burden of explaining that particular issue to Kent Police, an onus it had failed to discharge.

In relation to the victimisation claim, the EAT was clear – you could not victimise, consciously or unconsciously, if you were not aware of the act you were said to be responding to. It was not OK for the Employment Tribunal to have inferred that knowledge from unreasonable treatment alone. After all, said the EAT in reflective mood, “It is a sad fact that people often treat others unreasonably irrespective of race, sex, or other protected characteristic”.

Lessons for Employers

Bowler is absolutely stuffed with examples of things not to do in terms of good ER management. However, provided that your witnesses’ earnest evidence of their own ineptitude is accepted, it may offer some limited hope of avoiding a discrimination finding. That said, Bowler also shows that it will take very little indeed by way of evidence of possible bias to hole that defence below the waterline, and it is probably not overstepping the mark to suggest the greater the level of incompetence claimed, the harder the Tribunal will strain to find that tell-tale “something”.

Supreme Court Says Appellate Courts Must Defer To District Court Decisions Regarding Enforceability of EEOC Subpoenas

Title VII of the Civil Rights Act of 1964 (Title VII) bestows upon the Equal Employment Opportunity Commission (EEOC) the right to subpoena records from employers against whom formal charges of discrimination have been filed; the EEOC also can subpoena employer representatives for interviews.  The purpose of this subpoena power is to allow the EEOC to determine the validity of charge allegations.  The scope of this subpoena power is broad – according to EEOC v. Shell Oil, a 1984 United States Supreme Court decision, the EEOC can subpoena “virtually any material that might cast light on the allegations against the employer.”  If an employer fails or elects not to comply with the subpoena, the EEOC can seek an order from a United States District Court enforcing the subpoena.  The District Court must apply the “generous” relevance test.  If the requested information sought is determined to be relevant, the District Court only can quash the subpoena if it is determined to be “too indefinite,” issued for an “illegitimate purpose,” or is “unduly burdensome.”

Employer McLane Co. challenged such an EEOC subpoena that sought broad “pedigree information” – names, social security numbers, addresses, and telephone numbers – for a long list of its employees whom the EEOC suspected were subjected to sex and age discrimination.  In response to McLane’s challenge, the EEOC sought a District Court enforcement order.  But the Arizona District Court disagreed with the EEOC, and refused to enforce the subpoena on the basis that the pedigree information sought was not relevant to the sex and age discrimination charges.

The EEOC appealed to the Ninth Circuit.  The Ninth Circuit disagreed with the District Court’s finding and, upon a review of the applicable facts and law, determined the subpoenaed information was relevant to the sex and age discrimination charges.  The Ninth Circuit remanded, leaving the remaining questions of reasonableness for the District Court to determine.  In its relevance analysis, the Ninth Circuit applied a de novo standard of review.  Under this standard of review, an appellate court considers a matter with a fresh eye on the facts and law, without deference to the underlying District Court’s findings.

McLane then petitioned the United States Supreme Court to review the Ninth Circuit’s order, arguing that the appeals court should have reviewed the lower court’s order under the deferential abuse of discretion standard.  Under this standard, the appellate court is not a fact finder and only determines whether the District Court committed clear error.  Although the Ninth Circuit panel in McLane followed the Circuit’s precedent when it applied the de novo standard, the panel itself questioned this standard.  Indeed, the Ninth Circuit is the only Circuit that had applied a de novo review to EEOC subpoenas up to that point.  Due to the disagreement among the Circuits, the Supreme Court granted review of the McLane order.

Upon its review, the Supreme Court agreed with the other Circuits; District Court EEOC subpoena enforcement orders are subject to an abuse of discretion review by appellate courts.  The Supreme Court based its decision largely on two factors – the backdrop of legal precedent in which the EEOC subpoena power was enacted under Title VII, and the institutional capacity of the District Courts versus the appellate courts to conduct the fact-specific inquiries involved.  With regard to the first factor, the Supreme Court noted that the EEOC’s subpoena powers were authorized in 1972, intending to model the subpoena powers of the National Labor Relations Board, which are authorized under the National Labor Relations Act (NLRA).  In the nearly four decades between the creation of the NLRA and the Title VII amendment authorizing EEOC subpoena power, every appellate court to consider the question determined an NLRB subpoena enforcement order was subject to appellate review under the abuse of discretion standard.  On the second factor, the Supreme Court found that District Courts are better suited to make the “fact intensive, close calls” required in the subpoena review.  Indeed, District Courts consider fact issues pertaining to discovery and evidence on a regular basis.  Having clarified the standard of review, the Supreme Court remanded the McLane matter to the Ninth Circuit to re-review the District Court’s decision, this time for an abuse of discretion.

NLRB Will Not Hack Into Prior Decision Regarding Employee Email Use During Non-Work Time

Network security and protection of confidential information are among the reasons many companies place limits on how and when employees may use company-provided email.  However, the National Labor Relations Board (NLRB or Board) has largely ignored if not outright rejected these legitimate concerns, finding that under certain circumstances, they are outweighed by employees’ right to use email as a means to engage in concerted activity protected by Section 7 of the National Labor Relations Act (NLRA), which includes union organizing.  The NLRB’s March 24, 2017 decision in Purple Communications, Inc. reconfirmed the Board’s position, first announced in an earlier 2014 decision, that an employer that provides its employees with access to company email systems must presumptively allow employees to use those systems during non-work time to engage in NLRA-protected activity.  Accordingly, under this standard, an employer who maintains a policy prohibiting employees from all use of company email during non-work time presumptively violates the NLRA.

It was precisely this type of non-work time email restriction that landed Purple Communications, Inc. in hot water with the NLRB.  At the initial hearing in this case, an administrative law judge (ALJ) found that Purple’s total ban on non-work time use of company email did not violate the NLRA, relying on the NLRB’s decision from 2007 in Register Guard, which held that employees have no statutory right to use employer-provided email systems for Section 7 purposes, and thus allowed employers to prohibit non-work time use of company email systems, so long as the policy or practice did not discriminate against NLRA-protected activity.  The parties on both sides in the Purple matter appealed the ALJ’s decision on this and other grounds, and the matter was taken up for consideration by the Board.   After review of the record, a Board majority (in a three-to-two member decision) promulgated a new standard under the NLRA for employer regulation of its own email systems during non-work time (Purple I).  The Board majority expressly overruled Register Guard, and held that under its new standard, employees are presumptively entitled to use their employers’ email systems during non-work time in order to engage in statutorily-protected communications.  The Board announced that this presumption can only be overcome in rare cases where “special circumstances” exist to allow employers to maintain “production or discipline.”  Notably, special circumstances cannot be established through the ordinary (yet entirely legitimate) concerns that affect all employers, such as those mentioned above concerning security or confidentiality of information.  In its order setting forth this standard, the Board also remanded the matter back to the ALJ to enter an order consistent with the new standard.  On remand, the ALJ predictably found Purple’s policy violated the NLRA under the Purple I standard.  Purple once again appealed, asking the Board to reconsider the standard it announced in the Purple I decision.

On March 24, 2017, a majority of the three-member Board panel assigned to review the matter confirmed the standard announced in Purple I, without significant comment except to refer back to the original 2014 majority decision.  Acting Board Chairman Philip Miscimarra dissented from the majority’s Purple II decision, as he did in Purple I, calling the standard it set forth “incorrect and unworkable,” and pointing out many of its practical flaws.  Among them, Acting Chairman Miscimarra explained that the Purple standard fails to properly balance an employer’s right to control its technology resources, which are a significant expense to employers to maintain and secure, with employees’ NLRA rights.  The dissent also pointed out that the decision limits employers’ ability to control work-time behavior, because an email sent by one employee during his or her non-work time often will be received and read by another employee during his or her own work time.  In addition, the dissent noted the tension created by the majority’s decision between an employer’s legitimate right to monitor use of its technology, including email (allowing it to appropriately intercept improper communications, such as harassing or discriminatory communications for which it could be liable under other laws), with the NLRA’s prohibition of employer surveillance of NLRA protected activity.  These and other concerns are likely now once again going through many employers’ minds when considering the Purple standard.

There is a silver lining for employers, at least for now.  First, the Purple standard does not apply to employer regulation of email during working time, only non-work time.  Second, the Purple standard only applies to employers who already grant employees access to company email systems in the course of their work; employers are not required to provide employees with email access they do not otherwise have.  Third, the Purple decision only applies to company email, and not other forms of company technology.  However, the latter restriction may only be temporary.  Although the composition of the NLRB is expected to become more employer-friendly with the change in presidential administration, it is possible that the NLRB could use the same or similar reasoning from Purple to broaden the non-work time use requirement to other forms of company technology (cell phones and social network platforms, to name a couple).

Because of this, employers would be well-served to review their technology policies.  Absent truly unique circumstances, employers generally should avoid policies that state a total ban on non-work time use of company-provided email.  Bolstering other company policies, such as those that relate to confidentiality and time keeping, may help alleviate some of the problems meant to be addressed by a broad non-work time email ban.  And, to avoid becoming the next name on a new NLRB standard, consider whether any non-work time use restrictions on other forms of technology might be overbroad under the reasoning in Purple.

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