Why it matters

A divided National Labor Relations Board (NLRB) affirmed that if an employer provides employees with access to the email system, then employee use of email for statutorily protected communications on nonworking time is presumptively permitted. This standard, set forth by the Board the first time it considered Purple Communications, Inc., was applied on remand to the employer’s communications policy that prohibited workers from 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. A union seeking to organize the company’s workers objected to the policy, arguing that it interfered with their freedom of choice in the union election. An administrative law judge (ALJ) initially found the policy lawful but the NLRB reversed in Purple Communications I. The Board established a new standard 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.” On remand, an ALJ applied the new standard and found the employer’s policy unlawful. The Board affirmed in a 2-to-1 vote. Although a dissent filed by the Acting Chair characterized the new standard as “incorrect” and “unworkable,” employers are stuck with it for the time being.

Detailed discussion

Purple Communications provides real-time sign language interpretation during video calls at 16 call centers across the United States. Each interpreter is assigned to an individual email account, which can be accessed both at a workstation and from home computers and personal smartphones. Since 2012, the employer has maintained a handbook policy that prohibits employees from using the company email system for nonbusiness purposes.

Specifically, the policy banned use of “the computer, internet, voicemail and email systems, and other Company equipment in connection with any of the following activities: … Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company. … Sending uninvited email of a personal nature.”

When workers at some of the call centers attempted to organize a union, they filed a charge with the National Labor Relations Board (NLRB) that the policy interfered with employees’ National Labor Relations Act (NLRA) Section 7 rights in violation of Section 8(a)(1). An administrative law judge (ALJ) initially upheld the policy, finding that employees’ rights were not violated.

But upon review, the NLRB established a new standard with regard to employee use of an employer’s email system, ruling 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.”

The Board noted that an “employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights,” and remanded the case for the ALJ to consider the lawfulness of Purple Communication’s electronic communication policy under the new standard.

On remand, the employer notified the judge it would not contend that special circumstances existed justifying the policy; instead, Purple Communications argued that Purple I was wrongly decided and should be reconsidered. Having been tasked with a mandate from the Board, the ALJ applied the new standard and found that the employer’s policy violated Section 8(a)(1) “by maintaining an overly broad electronic communications policy that unlawfully restricts employees’ use of the … email system for Section 7 purposes.”

Purple Communications appealed to the NLRB. A majority of the Board affirmed the ALJ’s decision and the use of the new standard, adopting an order to have the employer rescind the policy.

Acting Chair Philip Miscimarra dissented, writing that the new standard is “incorrect and unworkable.” He raised several objections, including that the new standard fails to properly balance the right of employees to self-organize with the right of employers to maintain discipline in their establishments.

Restricting use of an employer’s email system to business-related purposes does not create an unreasonable impediment to self-organization, he said, “notwithstanding the widespread availability of multiple digital platforms (e.g., social media, text messaging, and personal email accounts)—not to mention old-fashioned face-to-face conversation—through which employees may engage in NLRA-protected communications separately and apart from their employer’s email system.”

In addition, the Purple Communications standard fails to accommodate employers’ property rights in their information technology resources and makes it “enormously” difficult for employers to enforce a valid rule prohibiting solicitation during working time, Miscimarra wrote, not to mention the creation of an exception that will create uncertainty for employers. “[W]hat qualifies as a ‘special circumstance will only be determined after the fact and case by case, following potentially years of Board and court litigation,” he said.

To read the decision and order in Purple Communications, Inc., click here.