On December 11, 2014, a divided National Labor Relations Board (the "Board") overturned its 2007 decision inRegister Guard and held that employee use of email on nonworking time for Section 7 purposes must presumptively be permitted by employers who have chosen to give employees access to their email systems.

Board Overturns Register Guard

The case arose due to Purple Communications, Inc.'s electronic communications policy requiring that company computers, Internet, and email be used for "business purposes only." The company also strictly prohibited employees from using computer, internet, or email systems for "engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company…" and from "[s]ending uninvited email of a personal nature." The union, who was organizing the company's employees, filed a petition challenging the electronic communications policy.

The administrative law judge who initially heard the case found the company's electronic communications policy was lawful under Register Guard. In Register Guard, the Board held an employer may completely prohibit employees from using the employer's email system for Section 7 purposes without demonstrating any business justification, so long as the employer's ban is not applied discriminatorily. In rejecting the administrative law judge's decision and holding that Purple Communications' electronic communications policy violated the National Labor Relations Act, the Board overturned Register Guard.

The Board first held that Register Guard undervalued employees' core Section 7 rights to communicate in the workplace about their terms and conditions of employment, while giving too much weight to employers' property rights. The employees' need to share information and opinions is "particularly acute" in the context of an initial organizing campaign, like the one occurring in this case.

The Board next held that Register Guard failed to perceive the importance of email as a means by which employees engage in protected communications, which increased dramatically during the seven years since Register Guard. The Board noted that some personal use of employer email is common and usually accepted by employers.

The Board finally held that Register Guard mistakenly placed more weight on the Board's equipment decisions than was warranted. The Board stated that email systems are materially different from other types of workplace equipment that the Board has considered in the past. Email use will rarely interfere with others' use of the email system or add significant incremental usage costs. While the Board found Register Guard to disregard these material differences, the Board also questioned the broad pronouncements in the equipment cases that employers may prohibit all non-work use of such equipment.

Board Adopts New Framework

In rejecting Register Guard, the Board developed a new framework for analyzing whether an electronic communications policy violates the Act. The Board will presume that employees who have rightful access to their employer's email system in the course of their work have a right to use the email system to engage in Section 7 protected communications on nonworking time. An employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees' rights. Limitations on employee communications should be no more restrictive than necessary to protect the employer's interests. The Board noted that it will be rare that special circumstances justify a total ban on non-work email use by employees. An employer contending that special circumstances justify a restriction must demonstrate the connection between the interest it asserts and the restriction. It is not enough for an employer to proffer theoretical interests.

The Board limited its decision to email use by employees The Board noted it does not find that nonemployees have rights to access an employer's email system or that an employer must provide email to employees that it has chosen not to.

The Board applied its new policy retroactively in this case. The Board stated that in this case, if Purple Communications' policy is found unlawful, its remedial obligations will be limited to rescission of the policy and standard notifications to employees.

What This Means for Employers

The Board's decision in Purple Communications, Inc. is the latest blow by the Board to employer policies previously found to be lawful. Many employers have restrictions on electronic communications similar to the restrictions found to be unlawful by the Board in this case. Employers may now want to revise their electronic communication policies to ensure they are in compliance with current law and/or to hedge their bets against the likely legal challenges to follow this decision.

In rejecting its prior precedent in Register Guard, the Board leaves open many questions on what constitutes a lawful electronic communications policy. Here are but a few examples:

  • While the Board states that employers can still limit employees from sending non-work emails during nonworking time, the Board does not answer how an employer can prevent employees from reading non-work emails during working time.
  • Under what circumstances, if any, do employees have a Section 7 right to use Company email for union solicitation purposes during working time? Presumably this will depend on how the employer applies its policy for other non-business related usage, but exactly where an employer can draw the line, such as exceptions addressed in Register Guard for charitable and personal use, was not addressed in this decision.
  • The Board does not provide much guidance on what type of restrictions on electronic communications would be lawful under its new framework. The Board notes that a policy uniformly and consistently enforced that prohibits large attachments or audio/video segments may be lawful if the employer can demonstrate they would interfere with the email system's efficient functioning. However, by placing the burden on the employer to demonstrate why restrictions on Section 7 communications via company email are necessary and by not providing clear examples on when such restrictions are lawful, any restrictions on such communications could be challenged by a union. More Board cases analyzing the legality of restrictions in electronic communications policies are necessary before employers have a clear idea of what restrictions are lawful and what restrictions are unlawful.
  • Many employers expressly prohibit non-exempt employees from using email during non-working hours to comply with wage and hour rules. Does the Board's decision put reasonable FLSA-related rules in conflict with Section 7 rights?

Additionally, as the dissent notes, employers that impose restrictions now have to be in the uncomfortable position of monitoring employees' email to enforce the limitation without violating the Board's prohibition of unlawful surveillance of employees' Section 7 activity. The Board responded to this by stating "[w]e are confident…that we can assess any surveillance allegations by the same standards that we apply to alleged surveillance in the bricks-and-mortar world." The Board notes that an employer's monitoring of electronic communications will be lawful so long as the employer does nothing out of the ordinary, such as increasing its monitoring during an organization campaign or focusing its monitoring on protected conduct or union activists. Of course if an employer learns about an employee's union activism in the course of routine surveillance, that is knowledge that can and will be imputed to the employer if the employee is later disciplined and alleges the discipline stemmed from anti-union animus.