On Thursday, December 11, the National Labor Relations Board reversed what had been well-settled law regarding the rights of employers to prevent employees from using their employer’s email system for nonbusiness reasons. If upheld by the courts, this decision is expected to have major ripple effects and serve as a spur to union organizing efforts in a variety of industries where unions have had difficulty gaining a foothold until now.
In Purple Communications, Inc., the Board held that employees have a statutory right, under Section 7 of the National Labor Relations Act, to use their employers’ email systems for self-organization and other nonbusiness purposes during nonworking time, reversing Register Guard, 351 NLRB 1110 (2007), which previously permitted a blanket prohibition on such use. The Board concluded that its analysis in Register Guard was “clearly incorrect” and focused too much on employers’ property rights to the detriment of employees’ workplace communication rights. The Board also stated that Register Guard failed to acknowledge the development of email communication as a “natural gathering place” for engaging in protected Section 7 communications.
Purple Communications, Inc. involves a fairly common electronic communications policy, one which allowed employees to use the company’s email system and equipment but limited their use to business purposes only. The policy also specifically prohibited using the employer’s email systems for “activities on behalf of organizations or persons with no professional or business affiliation with the Company,” and “sending uninvited email of a personal nature.” The company’s employees had assigned email accounts, which they could access both at their workstations and remotely. They also had Internet access on computers in their break areas but limited Internet access at their workstations. A challenge to the electronic communications policy resulted in a victory for the employer at the administrative law judge stage, to which the Board’s General Counsel and the Charging Party filed exceptions. In April 2014, the Board invited amicus briefs on the issue of whether to adhere to its Register Guard precedent.
The employer argued, in part, that its prohibition of nonbusiness use of its email system would not infringe on its employees’ Section 7 rights, because the employees have ready access to alternative means of communication in the form of personal smartphones and email accounts. The company also argued that under Register Guard, employers have a strong property interest in their equipment that outweighs employees’ interest in using such equipment for Section 7 purposes. Despite these arguments, the Board ruled, “[c]onsistent with the purposes and policies of the Act and our obligation to accommodate the competing rights of employers and employees, we decide today that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.” An employer may rebut this presumption by “demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employee’s rights.”
The Board attempted to limit its ruling by stating that it is not forcing employers to provide employees with email access at work, but that its decision is limited only to employers that have already granted email access to their employees. However, this pronouncement makes little difference because the majority of employers currently provide email access to their employees. The Board declined to address email access by nonemployees and other types of electronic communications systems, finding that those were not at issue.
The Board’s ruling, which applies to both unionized and non-unionized workplaces, will have far reaching consequences, affecting everything from employers’ ability to monitor email communications to employee productivity. Because of the importance of this case, the Board’s ruling will almost certainly be appealed, and a final determination on this issue could be years away. In the interim, any employer that refuses to follow the Board’s decision could find itself embroiled in unfair labor practice proceedings.
All employers currently providing access to company-owned email systems should review their handbook and personnel policies and decide whether to comply with the Board’s decision or await the results of any appeal. It would be wise to also examine policies regarding other forms of electronic communications, such as Internet access, because the Board might apply the same reasoning used in Purple Communications if asked to decide whether such policies are permissible.