In Purple Communications, Inc., 361 NLRB No. 126 (2014), the National Labor Relations Board (NLRB or Board) issued a 3-2 decision holding that employee use of an employer’s email systems for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems. The Board’s ruling represents a dramatic change in the law regarding employees’ right to organize and will have even broader implications for employer policies regarding their email systems.

In 2007, the Board in Register Guard, 351 NLRB 1110 (2007) held that employees have no statutory right to use employer email systems for activities covered by Section 7 of the National Labor Relations Act (NLRA or the Act), which include both the right to organize and the right to engage in protected concerted activities (e.g. group discussions about employee terms and conditions of employment). The case involved union employees of an Oregon-based newspaper, The Register Guard, who were disciplined for using their Register Guardemail addresses to send messages to other union members about union-related matters. Register Guard’s company policy stated that company communications systems were “not to be used to solicit or proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.” The Board held that an employer has a basic property right to regulate and restrict employee use of company property, including email accounts, and that the restriction was a valid and nondiscriminatory exercise of that right, as it applied to all outside causes and organizations, not just unions. 

However, in April of this year, the NLRB called for briefs in Purple Communications asking whether it should overrule its decision inRegister Guard, and last week the Board did just that. The majority inPurple Communications stated of the previous Board’s decision that “by focusing too much on employers’ property rights and too little on the importance of email as a means of workplace communication, the Board failed to adequately protect employees’ rights under the Act and abdicated its responsibility ‘to adapt the Act to the changing patterns of industrial life.'”

The employer in Purple Communications provides sign-language interpretation services and its employee handbook stated that employees were “strictly prohibited from using the computer, internet, voicemail and email systems, and other Company equipment in connection with…[e]ngaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company.” In analyzing this company policy, the Board applied the Supreme Court’s standard in Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), which balances “the undisputed right of self-organization assured to employees” with “the equally undisputed right of employers to maintain discipline in their establishments.” The Board held that the company’s property rights were outweighed by its employees’ “core Section 7 right to communicate in the workplace about their terms and conditions of employment,” striking down the ban on employee use of employer email systems for non-work related communications. The Board held that employee use of their employer’s email systems for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.

The Purple Communications ruling is especially significant in that it goes beyond merely forbidding discrimination, and instead creates a new positive right in favor of unions and employees interested in organizing the workplace. That is, subject to a potential exception below, an employer violates the law by banning all non-work-related email use, even though such a ban would not discriminatorily target Section 7 activities. Under Purple Communications, once an employer has given an employee access to its email system for business purposes, it must allow employees to use that system to communicate about Section 7 activities.

The Board’s ruling set forth certain limitations on email use by employees, but the limitations are narrow at best. It stated that employee use of email for activities protected under Section 7 could be limited to non-working time. So, for example, an employer could presumably limit non-work related email use to lunch time and work breaks. Such limitations, however, should provide little solace to employers concerned about employees losing productivity, particularly since, in most work places, breaks are not precisely defined and such limitations will be difficult to enforce. 

The Board also held that an employer could demonstrate “special circumstances” that make a total ban on non-work use of email necessary to maintain production and discipline. But it provided no guidance or examples of situations where special circumstances might exist that justify a complete ban on non-work related emails and made clear that such special circumstances will be rare. At the very least, an employer who completely bans non-work use of e-mail takes a risk that the Board will find such a ban unlawful.

The Board held that its decision only applied where the employer already granted access to its email system to employees in the course of their work. Of course, more and more employees have access to their employer’s email systems as an important part of their work. Thus, employer email systems are likely to become a powerful tool for union organizing.

The Board’s decision also hinted at future concerns for employers. For example, it would not be surprising if the Board applied the principles it articulated in Purple Communications to employer telephone systems. And a host of other questions and issues will arise out of the decision. For example, when does employer review of employee emails become unlawful surveillance and to what extent can employers discipline employees for statements about their workplace, supervisors, etc. in communications to fellow employees? 

In conjunction with the Board’s newly-promulgated final election rule, which will become effective in April 2015, and its social media decisions issued over the past several years, the Board has now established a variety of avenues by which unions may use electronic means to organize workplaces. For example, under the new election rules, employers must provide unions with final voting lists that include employees' personal e-mail addresses. Similarly, under the Board’s recent social media decisions, employers are greatly restricted in taking action to control employee behavior on social media.

In conclusion, every employer subject to the National Labor Relations Act (virtually all employers except governmental entities) should review its policies regarding non-business use of emails and determine whether they comply with the rules set forth in Purple Communications. Of course, the Board’s decision is still to be tested in the courts and it is by no means clear that courts will enforce this and future cases relying on this new precedent. Indeed, in vigorous dissents, Board members Miscimarra and Johnson argued that the decision was contrary to precedent, improperly burdened employer property rights, and violated the First Amendment by forcing companies to pay for speech that they do not support. Nevertheless, the courts traditionally give great deference to the Board’s interpretation of the Act that it enforces.

Employers therefore need to make an informed decision about whether to change the rules or await court decisions. Employers that do not comply with this decision do so at their peril, as policies that are not compliant with Purple Communications will give unions the basis for unfair labor practice claims. For employers that are facing or likely to face union organization attempts, noncompliance could also jeopardize an employer election win.