The National Labor Relations Board (“NLRB” or the “Board”) has yet again expanded employees’ rights to discuss the terms and conditions of their employment or otherwise engage in protected activity. In Purple Communications, Inc. and Communications Workers of America, AFL-CIO, the NLRB held that employees who already have access to their employers’ email systems through work must be allowed to use the email systems to engage in protected communications about the terms and conditions of their employment on nonworking time. This decision overrules the NLRB’s 2007 Register Guard decision to the extent that it held that employees do not have a right to use their employers’ email systems for such purposes.

Purple Communications had an electronic communication policy that, among other things, stated that its email and other electronic systems were to be used for business purposes only and that “engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company” or “sending uninvited email of a personal nature” was prohibited. A dispute arose when a union organizing campaign was afoot and the would-be union challenged the policy as interfering with the employees’ freedom of choice in the union election. The Administrative Law Judge upheld the policy under the NLRB’s Register Guard decision, which held that employers may enforce a policy that prohibits employees from using employer email for “non-job-related solicitations” (including union organizing efforts), so long as they do so in a non-discriminatory manner. The union and the NLRB’s General Counsel appealed.

In overruling Register Guard – which was issued by an NLRB Board during the Bush administration – the Board noted that its prior decision was “clearly incorrect” for the following reasons: (1) it focused too much on the employers’ property rights in its email systems and too little on the importance of email as a way to communicate in the workplace and (2) it failed to adequately protect employees’ rights under the National Labor Relations Act and “abdicated its responsibility ‘to adapt the Act to the changing patterns of industrial life.’”

According to the NLRB, this new email usage rule is purportedly limited as it only applies to employees who have already been given access to company email and does not require that employers grant such access. Yet given how ubiquitous email has become in the modern workplace, it is hard to see how this limits the Board’s ruling in any meaningful way. An employer can justify a total ban on nonwork use of email (including protected activity) by showing that “special circumstances” make a ban necessary to maintain “production or discipline,” but the NLRB admitted that “special circumstances” justifying a total ban would be rare. Absent special circumstances, the employer can apply uniform and consistently enforced rules governing email as long as they are necessary to maintain production and discipline.

The NLRB addressed the concern of unlawful surveillance – i.e., employers monitoring email and therefore being held to have unlawfully surveilled unionizing activity. However, it held that employers can still stake out the ability to monitor their email systems for “legitimate management reasons” without fear of such liability as long as they do not change the monitoring in reaction to unionizing activity or target certain employees who are engaged in such activity. Further, employers can still maintain and communicate to employees that they do not have an expectation of privacy in their use of employer-provided email systems.

The Board noted that its opinion only reaches email systems and not any other type of electronic communications system, yet it would not be surprising if the NLRB attempts in the future to reach instant messaging, Skype, or other electronic communication methods used in the workplace. Although this decision involved union organizing, as with other NLRB decisions, this ruling applies to private, non-unionized employers as well. Accordingly, companies should revisit their email usage and non-solicitation and distribution policies to ensure compliance with this ruling.