In a 3-2 split decision along party lines, the National Labor Relations Board has held that employees are presumptively permitted to use their employer's email systems during non-work time for Section 7 activities if employers give employees access to their email systems. The Board's decision in Purple Communications overrules the 2007 decision in Register Guard "to the extent it holds that employees can have no statutory right to use their employer's email systems for Section 7 purposes."
The Board claims its decision is "carefully limited":
First, it 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 nonwork use of email, including Section 7 use on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline. Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline. Finally, we do not address email access by nonemployees, nor do we address any other type of electronic communications systems, as neither issue is raised in this case.
In a vigorous dissent, Member Philip A. Miscimarra claims the parameters of this decision will be difficult to apply:
Nobody will benefit when employees, employers, and unions realize they cannot determine which employer-based electronic communications are protected, which are not, when employer intervention is essential, and when it is prohibited as a matter of law. Not only is such confusion almost certain to result from the majority's decision, it is unnecessary and unwarranted.
Similarly, Member Harry Johnson took issue with the scope of the Board's decision:
My colleagues have created a sweeping new rule that interferes with an employer's well-established right to restrict employee use of its property based on convenience. This new framework threatens to undermine an employer's right, as recognized by Board and Court precedent, to have a productive workforce. The new framework probably exceeds the jurisdiction of the Board to impose unfunded mandates on employers and certainly violates the First Amendment.
A more detailed analysis of the Board's Purple Communications decision and its implications for employers will be published shortly.