NLRB Reverses Precedent on Employee Use of Employer Email Systems

The National Labor Relations Board ("NLRB" or "Board"), by a 3 to 2 vote, has issued a blockbuster decision holding that employees now have the right to use their employer's email systems for union organizing purposes, and other communications related to employee wages, hours and working conditions. The significance of this decision cannot be overstated, and it raises as many questions as it answers.

Purple Communications and Register Guard

The employer in Purple Communications maintained an electronic communications policy that prohibited employees from using the employer’s electronic communications system for essentially all non-business related purposes. The Communications Workers union, after engaging in a representation election at the employer’s various locations, challenged the electronic communications policy as violating the National Labor Relations Act ("NLRA" or "Act"). According to precedent first issued by the NLRB in 2007 in Register Guard, the employer’s policy complied with the NLRA. Under Register Guard, an employer could prohibit employees from using the employer’s email system for otherwise NLRA-protected communications, without providing a business justification, so long as the employer’s ban was not applied discriminatorily.

The Board in Purple Communications has now flatly reversed Register Guard, and has created a novel presumption with which employers must now grapple. The Board’s new presumption is that employees who are provided access to their employer’s email systems for their work may now use their employer’s email systems on their non-work time for Section 7 purposes (that is, to communicate with respect to unions or their wages, hours and working conditions). An employer may overcome the presumption only if it can carry the heavy burden of demonstrating "special circumstances" that justify a total ban on non-work use of email "to maintain production and discipline."

The majority based its decision to overturn Register Guard on a number of considerations, including the unquestionable growth of email as a method of employee communication in today’s workplace. However, the most significant aspect of the majority’s analysis is its willingness to require employer private property rights to be diminished in favor of employee Section 7 rights. The Board’s decision is unprecedented, in terms of expanding employee use of employer equipment for such purposes. Bear in mind that most Section 7 activity involves co-employee discussions and complaints (sometimes intemperate) about wages, benefits, and other working conditions, with no formal union involvement. This decision could open a floodgate of such email traffic, with employers left to determine whether it occurred on non-work time. As Board Member Miscimarra aptly noted in his dissenting opinion, "virtually nobody will really understand—in real time—whether or when particular communications are protected."

Although the decision does not address use of equipment other than email systems, there are sure to be issues relating to telephone and portable device use, as well as use of the employer's computer equipment to access social media on non-work time.

Action Steps for Employers

An appeal in Purple Communications seems likely. However, in the meantime, in order to comply with Purple Communications’ new standards, employers will need to consider revising their current electronic communications policies, if they bar all personal use. Employers will also need to ensure that their current email monitoring policies, many of which state that employees have "no right to privacy" in their emails, do not run afoul of the NLRA’s prohibition on employer surveillance of protected employee activity.