In a controversial but not unexpected decision, reversing precedent, a majority of the National Labor Relations Board held that absent special circumstances that justify specific restrictions employers must permit employees who have been provided access to their employer’s email system to use email for statutorily protected communications on their nonworking time  Purple Communications, Inc., 361 NLRB No. 126 (December 11, 2014). The decision applies retroactively.

Facts

The Respondent, Purple Communications, provides sign-language interpretation services. Its employees provide two-way, real time interpretation of telephone communications between deaf or hard-of-hearing individuals and hearing individuals. The interpreters work at 16 call centers and all are assigned and use on a daily basis individual email accounts on Respondent’s system. Employees can access their email accounts at their workstations, in break areas, and on their personal computers and smart phones.

In the fall of 2012, the Union (Communication Workers of America) filed a petition to represent the interpreters, which resulted in Board elections at seven of Respondent’s call centers. The Union filed objections to some of the results and challenged Respondent’s electronic communications policy, which strictly prohibited employees from using the computer, internet, voicemail and email systems, and other Company equipment to engage “in activities on behalf of organizations or persons with no professional or business affiliation with the Company,” and to send “uninvited email of a personal nature.”  According to the Union, the policy interfered with the interpreters’ freedom of choice in two of the elections. The Union also filed an unfair labor practice regarding the policy, which led to the issuance of a complaint and the case at issue.

The NLRB administrative law judge, findingthat Respondent’s electronic communications policy was lawful under the Board’s decision in Register Guard, 351 NLRB 1110 (2007), dismissed the complaint, and overruled the Union’s related election objections. The Board’s Register Guard decision provides that employers may completely prohibit employees from using the employer’s email system for Section 7 purposes, even if employees are otherwise given access to the system, without any obligation to demonstrate any business justification as long as the employer’s ban is not applied in a discriminatory manner.  After both parties filed exceptions to the ALJ’s decision, the Board issued a notice and invitation to the parties and interested amici curiae to file a brief on several questions including whether the Board should reconsider its conclusion inRegister Guard and what standard should apply if the Board overruled Register Guard.  

Register Guard Overruled

In Purple Communications, the Board overruled Register Guard and set forth a new rule – a presumption that employees who have been provided access to the employer’s email system are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment during nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions. To demonstrate special circumstances, an employer must articulate the specific business interest at issue and show how the interest supports a restriction on email usage during nonworking time.

According to the Board majority, the analysis in Register Guard focused too much on employer property rights and too little on the importance of email as a means of workplace communication, did not adequately protect employees’ Section 7 rights under the Act, and failed to “adapt the Act to the changing patterns of industrial life.”

The majority found the Register Guard Board’s reliance on the notion that email systems are equivalent to other communications-related equipment (such as bulletin boards, copy machines, public address systems, and telephones) which an employer can limit use of for work purposes misplaced.  Given the prevalence of email communication in the workplace, this analysis placed too much emphasis on equipment and not enough on an employee’s right to communicate regarding self-organization at the jobsite.  Electronic communication is effectively a new “natural gathering place” and a forum in which coworkers who share “common interests” will “seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.” Accordingly, the Board found a significant difference between an employer-owned email system and an employer’s bricks and mortar facility making the Register Guard Board’s analogy to employer-owned  equipment and emphasis on employer property rights misplaced.

The Board also reasoned that email communication is not a solicitation or a distribution per se. Rather, an email system is merely a forum for communication and the content of the email may constitute a solicitation, distribution, or neither a solicitation nor distribution, but communication that is still protected by the Act.  Thus, email systems cannot be characterized as a work or non-work area, but should be considered as mixed-use areas in which work-area restrictions on literature distribution will generally not apply. Thus, the Board ultimately concluded that the Register Guard analysis was not appropriate and should be overruled to ensure the Board adapts the “Act to the changing patterns of industrial life.”

The Board noted that its decision in Purple Communications is carefully limited and seeks to accommodate employees’ Section 7 rights to communicate and the legitimate interests of their employers.  First, the Board noted that the decision 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.  Second, an employer may justify a total ban on non-work use of email, including Section 7 use on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline.  The Board noted, however, that “it will be the rare case where special circumstances justify a total ban on non-work email use by employees.” Further, where special circumstances do not justify a total ban, employers may still apply uniform and consistently enforced controls when necessary to maintain production and discipline. Third, the decision does not address email access by nonemployees, nor does it apply to any other type of electronic communication systems.

Dissents

Member Miscimarra dissented from the decision on the grounds the Board should avoid disrupting long standing precedent and strive to accommodate any conflict between employer property rights and employee rights to engage in protected activity.  The presumption established in Purple Communications fails to accomplish those goals.  Furthermore, the dissent stated that the majority decision presumes that limiting email system use constitutes an impediment to self-organization, fails to accommodate an employer’s property rights associated with its computer resources, adversely affects other legal requirements imposed by the Act, and replaces an easily understood rule with a presumption unless unspecified “special circumstances” exist.

Member Johnson also dissented from the decision, in part, based on his view that email is different than physical space and the majority decision undermines an employer’s right to own and operate an email network for business purposes. Unlike physical space, email communication is unlimited, can be directed to large audiences regardless of the wishes of some or all of the audience, cannot be separated in terms of working or non-working areas, and is impossible to exit if working on the system.  Conversations taking place at the water cooler or in person do not persist beyond the conversations themselves.  Email conversations, on the other hand, are a double edged sword in relation to productivity because there are no definite bounds in space, time, or audience which necessarily costs employers money and distracts from the employer’s business.

Employer Actions

In response to this decision, all employers must review their electronic communications, bring your own device (BYOD) and social media policies and practices relating to employee usage, notably where there is a complete ban on personal use.  Policies promulgated pursuant to Register Guard which prohibited all personal e-mail usage or personal email usage for Section 7 purposes or email usage during non-working time must be modified.  Note that an unlawful policy, even if not enforced, can result in the overturning of an election.  Further, while employers still should reserve the right to monitor email usage, before exercising such right, employers must consider potential NLRB charges based on surveillance if there is known union activity and must be wary of disciplinary actions commencing shortly after learning of union activity through monitoring.  Of course, this policy review cannot be accomplished in a vacuum and also should include non-NLRA related considerations such as the impact of allowing email on non-working time on potential wage and hour claims and privacy issues, including the monitoring the activity itself and use of these communications for disciplinary or litigation purposes.