On December 11, 2014, a divided National Labor Relations Board (“Board”) overruled existing precedent to hold that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.” Purple Communication, Inc., 361 NLRB No. 126, slip op. *1 (Dec. 11, 2014). Section 7 of the National Labor Relations Act protects certain concerted activities of most private-sector employees for the purpose of collective bargaining or other mutual aid and protection, including organizing efforts. See 29 U.S.C. 157. Purple Communications extends these protections to include the right of employees to make certain concerted uses of an employer’s email systems.
Prior to Purple Communications, Board precedent allowed employers to completely prohibit employees from using the employer’s email system for union-related activities without requiring a business justification for such prohibition—so long as the employer applied such a ban in a non-discriminatory manner. Register Guard, 351 NLRB 1110, 1114 (2007). The now-overruled Register Guard treated employer email systems as comparable to other employer communications-related equipment, such as bulletin boards, copy machines, and telephones—all of which employers have long been free to treat as unavailable for non-work usage.
Purple Communications deemed Register Guard incorrect in three significant respects. First, according to the Board majority, Register Guard gave too much weight to employers’ property rights, while undervaluing employees’ Section 7 right to communicate in the workplace about their terms and conditions of employment. Second, Register Guard failed to recognize the importance of email as a means of employee communications–an importance which the Purple Communications majority noted has “increased dramatically during the 7 years since Register Guard.” Finally, Register Guard placed too much weight on Board precedent regarding employer communications-related equipment.
Accordingly, under Purple Communications the following presumption applies to any policy restricting covered employees’ non-work usage of employer email-systems: “employees who have been given access to the employer’s email system in the course of their work are entitled to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions.” The majority, however, described this holding as limited in several respects:
- the presumption applies only to employees who have already been granted access to employers’ email-systems, and employers are still not obligated to provide employees such access;
- an employer may impose a total ban on employees’ non-work usage of its email-system if the employer can demonstrate special circumstances that make the ban necessary to maintain production or discipline (e.g., an employer’s interest in protecting its email system from damage or from overloads due to excessive use);
- the holding does not alter an employer’s ability to prohibit use of email for solicitation or other non-business purposes during working time;
- the holding does not address non-employees’ usage of employer email-systems, including use of said systems by professional union organizers; and
- the holding does not address employees’ usage of electronic communication systems other than email.
Despite these limitations, Purple Communications marks a significant change in federal labor law and introduces substantial uncertainty around the extent to which the Board majority’s analysis may extend in the typical workplace. Such change and uncertainty should prompt most employers with U.S.- based operations to review for compliance all policies and practices addressing employee use of company computer and email systems.