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eLABORate: NLRB Rules that Employees May Use Work Email for Union Communications

December 16, 2014

In a divided opinion issued on December 11, 2014, the National Labor Relations Board decided that employees who have been given access to their employer’s email system in the course of their work are entitled to use the system on nonworking time to engage in statutorily protected discussions about their terms and conditions of employment. Purple Communications, Inc., 361 NLRB 126 (2014). In so doing, the NLRB overruled its divided 2007 decision, Register Guard, 351 NLRB 1110 (2007), to the extent that it held that employees had no statutory right to use their employer’s email system for Section 7 purposes.

Section 7 of the National Labor Relations Act provides employees with the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining. The Register Guard decision established that an employer could completely prohibit employees from using the employer’s email system for Section 7 purposes, so long as the ban was not applied discriminatorily.

In Purple Communications, the NLRB described its Register Guard decision as “clearly incorrect” because it focused “too much on employers’ property rights and too little on the importance of email as a means of workplace communication.” The NLRB noted that email has “effectively become a ‘natural gathering place,’ pervasively used for employee-to-employee conversations.” The majority in Purple Communications rejected the dissenting members’ arguments that social media, texting, and personal email accounts constituted adequate alternative means for employee communications, because they were not “natural gathering places” for employees, in the same way as an employer’s email network.

Although Purple Communications overruled NLRB precedent, the NLRB was careful to note that its decision was “limited.” Specifically, the new rule permitting employees to use employer email systems for Section 7 purposes applies only to employees who have already been granted access to the employer’s email system in the course of their work and does not require employers to provide such access. This requirement is further limited to nonworking time. Additionally, the rule applies only to email systems and does not presently encompass other electronic communications, such as texting or instant messaging.

An employer may still attempt to enact a total ban on nonwork use of email, including Section 7 use on nonworking time, but must demonstrate that special circumstances make the ban necessary to maintain production or discipline. The NLRB anticipated that circumstances justifying a total ban on nonwork email use by employees would be “rare,” and that where a total ban was not justified, employers may apply uniform and consistently enforced controls over their email systems to the extent that such controls are necessary to maintain production and discipline. Employers are also not prevented from establishing restrictions, such as prohibiting large attachments or audio/video segments, if they can demonstrate that they would interfere with the email system’s efficient functioning.

The actual policy at issue in Purple Communications limited employee use of the employer’s email system to “business purposes only” and prohibited employees from using the email system to “[e]ngag[e] in activities on behalf of organizations or persons with no professional or business affiliation with the Company” or “[s]en[d] uninvited email of a personal nature.” The NLRB did not issue a finding as to whether or not the policy violates the Act and, instead, remanded the matter to the Administrative Law Judge to decide based upon the new standards.

Although the Purple Communications decision marks a significant departure from NLRB precedent, the immediate impact on employers is unsettled. In all likelihood, the employer will appeal the decision in federal court. Additionally, without guidance from the NLRB as to whether the policy at issue in Purple Communications violated the Act, employers are left without clear direction as to what language they can reasonably include in their policies regarding email use. At minimum, employers will have to proceed with caution about whether to take adverse employment actions against employees when the employees claim to have used the employers’ email systems for Section 7 purposes. The NLRB also cautioned employers against changing their email monitoring practices in response to union or other potentially protected, concerted activity.