On December 11, 2014, the National Labor Relations Board (the “NLRB” or “Board”) again departed from a long line of past precedent and overruled its 2007 decision in Register Guard, 351 NLRB 1110 (2007).  The Board in Register Guard had held that employees have no statutory right to use their employer’s email accounts for Section 7 purposes.  The Board had explained that an employer’s email system is no different than other property owned by the employer, and employers have long been afforded a basic property right to regulate and restrict employee use of their property (where the employer does not discriminate in restricting such use).  InPurple Communications, 361 NLRB No. 126 (Dec. 11, 2014), however, a new Board reversed course and held that employees may in fact have a statutory right to use their employer’s email accounts for Section 7 purposes.  This decision has significant implications for employers who should immediately review their electronic communications policies and consider revisions to ensure compliance.  Although it is likely that the decision will be appealed and possibly reversed, currently, employers may no longer prohibit employees with access to company email from engaging in communications protected by the National Labor Relations Act (“NLRA”) (absent a narrow exception).

Purple Communications is a company that provides sign language interpretation during video calls.  Each of its employees is assigned an email account, which he or she may access from employer workstations or from personal computers or cell phone devices.  Employees routinely used their work email systems to communicate with each other, and managers used the email to communicate with employees and other managers.  Purple Communications has an employee handbook that sets forth its policies and procedures.  In 2012, a union filed petitions to represent employees at several of Purple Communications’ facilities.  After elections were held, the union filed objections to the union election results and an unfair labor practice charge based on policies in the company’s handbook.  The handbook provided:

INTERNET, INTRANET, VOICEMAIL AND ELECTRONIC COMMUNICATION POLICY

Computers, laptops, internet access, voicemail, electronic mail (email), Blackberry, cellular telephones and/or other Company equipment is provided and maintained by Purple to facilitate Company business.  All information and messages stored, sent, and received on these systems are the sole and exclusive property of the Company, regardless of the author or recipient.  All such equipment and access should be used for business purposes only.

. . . .

Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other Company equipment in connection with any of the following activities:

. . . .

2. Engaging in activities on behalf of organization or persons with no professional or business affiliation with the Company.

. . . .

5. Sending uninvited email of a personal nature.

The Administrative Law Judge relied on Register Guard and found that the electronic communications policy was lawful.  However, the Board reversed.

The Board explained that freedom of communication is essential to the free exercise of organization rights, and in an era in which businesses are increasingly reliant upon the use of email and technology for communication, “email has effectively become [the] ‘natural gathering place,’ pervasively used for employee-to-employee communication.” Purple Communication, 361 NLRB No. 126 at 8.  According to the Board, the majority inRegister Guard failed to fully acknowledge the importance of email to workplace communication in modern businesses and placed too much weight on the property rights of employers in their own email systems.  As a result, they failed “to adapt the [NLRA] to the changing patterns of industrial life.” Id. at 11.

The Board thus fashioned a new analytical framework.  Under the new framework, the Board “presume[s] 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.” Id. at 14.  This presumption can be rebutted where a complete ban is necessary to maintain production or discipline.

Although the Board’s new framework appears relatively straightforward, it creates several issues for employers.  For instance, the Board did not provide any guidance as to when in fact a total ban would be “necessary to maintain production or discipline.”  Clearly, employers can think of many reasons justifying application of this exception.  However, the exception may in fact prove to be of limited application.  The Board noted “that it will be the rare case where special circumstances justify a total ban on nonwork email use by employees.” Id. at 14.  As perhaps a better alternative, employers should instead consider whether granting employee access to email systems is even necessary.  For some job categories, employee access may not be required.  The Board’s new standard does not prohibit employers from enforcing a total ban where that ban is limited to employees who are not otherwise granted access to company email.  Employers must simply be sure that policy and practice are consistent.

Furthermore, if an employee may only engage in Section 7 communications through work email during nonworking time, does this mean an employer may monitor use of its email systems during working time to ensure compliance and discipline employees for any violations?  Clearly, an employer may risk liability for unlawful surveillance or discrimination based on union activities.  In the Board’s words, employers may continue to monitor computers and email systems “for legitimate management reasons . . . so long as the employer does nothing out of the ordinary, such as increasing its monitoring during an organization campaign or focusing its monitoring efforts on protected conduct or union activists.” Id. at 15-16.  Yet, would an investigation be considered out of the ordinary?  Often times, investigations, by nature, involve additional focus on the problematic employee.  Employers should thus proceed with caution when investigating Section 7 communications during working time.

Finally, although the Board limited its new analytical framework to email systems, the Board suggested that it could extend similar rights to other employer owned property. See id. at 10 (“The supposed principle that employees have no right to use, for Section 7 purposes, employer equipment that they regularly use in their work is hardly self-evident.  We reject its application here, and we question its validity elsewhere.”).  Accordingly, employers should be mindful that under the current Board, other “total bans on employee use of [] employer[] personal property” may be suspect. Id. at 11.  If faced with an unfair labor practice charge, employers should be prepared to show how allowing access for nonbusiness purposes during nonworking time would harm their business. See id. at 11.