In a dramatic reversal of precedent, the National Labor Relations Board (NLRB) on December 11 ruled that employees may now use company email systems to solicit their co-workers to join a labor organization. Purple Communications, Inc., 361 NLRB No. 126 (2014).
Purple Communications maintained a typical policy stating that email and all other electronic systems and equipment provided by the company were to be used for business purposes only. The policy went further by specifically prohibiting use of these systems and equipment to engage in activities on behalf of organizations having no affiliation with the company and sending uninvited email of a personal nature. In a 3-2 decision over strong dissents, the NLRB found that such a policy improperly infringed on the exercise of rights protected by Section 7 of the National Labor Relations Act.
Seven years ago, in its Register Guard decision, another 3-2 majority held that an employer could completely prohibit employees from using its email system for organizational purposes, without demonstrating any business justification, provided the ban was not applied discriminatorily. The Board now has reversed course and concluded that the Register Guard decision was “clearly incorrect”. In a lengthy opinion, the Board has decided that the proper analysis is to accommodate employees’ right to organize or engage in other protected concerted activities with the legitimate business interests of their employers.
In its analysis, the Board noted that email has become the “most pervasive form of communication in the business world” and that some personal use of employer email systems is common and usually accepted by employers. Moreover, the Board majority stated that “empirical evidence demonstrates that email has become such a significant conduit for employee communications with one another that it 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 has now adopted the following framework for analyzing rules banning the personal use of email:
- it will presume that employees with “rightful access” to email systems have a right to use them for organizational or other protected concerted activities; but
- an employer may rebut the presumption by showing special production or discipline needs justify restricting employee rights.
The Board cautioned that it will be the “rare case” where a total ban on nonwork email use will be justified. Nevertheless, the Board stated that an employer may apply “uniform and consistently enforced” controls over its email system that are necessary to maintain production and discipline.
The Board noted that this decision applies only:
- to the use of email systems;
- to employees who have been granted access to the email system; and
- to use of the system on nonworking time.
Fortunately for employers, the Board stopped short of requiring nonemployee access to email systems and requiring an employer to give its employees access to the email system. Additionally, the Board held that employers may continue to monitor computers and email for legitimate business reasons such as ensuring productivity and preventing harassment or other activity that could result in employer liability.
This case, or another one like it, certainly will find its way to a federal court of appeals, and perhaps ultimately to the Supreme Court. But, in the interim, what is an employer to do?
Once again, a review of the employee handbook is necessary. Rules regarding use of email that yesterday were acceptable will not pass muster today. New rules must be crafted very carefully. Enforcement of email rules must be very closely scrutinized. The NLRB will order reinstatement and back pay for an employee discharged for violating an improper rule.
It is not clear what an employer will have to prove to justify restrictions on employee use of email. It is clear that the exception is going to be a very narrow one.