In a stunning decision that overturned existing Board precedent, the NLRB declared in Purple Communication, Inc. that an employer may not prevent an employee from using its email for non-work purposes.
As previously reported, the NLRB made a decision that will affect how every employer in the United States manages its company email systems. Previously, Board precedent upheld the right of an employer, under traditional notions of property law, to restrict employees non-work use of employer-owned property. In 2007, this precedent was applied analogously to an employer’s email systems in the Board’s decision in The Register Guard, 351 NLRB No. 70. It made infinite sense – if an employer could prevent employee’s non-work use of an employer-owned copy machine, or bulletin board, then an employer should similarly be able to prevent an employee’s non-work use of its email system! It was not to be.
On December 11, 2014, the Board in Purple Communications, reasoned that email systems are “materially different” from other employer-owned equipment and analogized a ban on email communication to general bans on oral solicitation during nonworking time. Under traditional NLRB precedent, such bans are viewed as barriers to employees’ efforts to organize. Thus, the Board held that email use during nonworking hours similarly cannot be restricted.
Equally as important as the decision is the fact that there are no real limits to it. For instance, the Board stated that an employer may justify a ban on nonwork-related email use by showing that “special circumstances necessary to maintain production or discipline justify [the email restrictions].” However, the presumption is that bans are now unlawful, and justification for bans related to “production and discipline” will be hard to establish. Moreover, there is no guidance as to what constitutes “nonworking” time and with the mobility of smartphones, and the presumption that employees are expected to access email systems after-hours creates a murky landscape. It is easy to imagine that only the most limited circumstances will justify a ban, especially under a Board that has shown itself to be very pro-employee.
Moving forward, employers should examine and revise any policies restricting employer use of email systems. Any restrictions must fit into the narrow exception that the Board has set up. Also, for gray areas like the definition of nonworking time, employers should work with counsel to come up with a strategy that will help them defend against any unfair labor practices that may come their way.