The National Labor Relations Board, in a 3-2 decision, has held that employee use of email for activities directed to terms and conditions of employment must presumptively be permitted by employers who have given employees access to their email systems. The Board’s decision inPurple Communications, Inc., 361 NLRB No. 126 (2014), issued on December 11, 2014, means that employees have the legal right to use company email for non-business related reasons, including union organizing and other activity directed against the employer, and may require most employers to revise their electronic communications policies.
The Purple Communications decision is troublesome for employers because in the modern workplace, it many times is essential for employers to provide employees with access to email systems for business-related purposes. Not only do employees utilize email to communicate with third parties on behalf of the employer, but email is increasingly the preferred method for internal dialogue, largely replacing bulletin boards, handouts, phone calls, and in-person meetings. But previously, in Register Guard, 351 NLRB 1110 (2007), the Board held that an employer may completely prohibit employees from using the employer's email system for non-business purposes, so long as the ban is not applied discriminatorily. The Board reasoned in Register Guard that email systems are the equivalent of other employer-provided communications equipment, and employers are permitted to ban non-work use of such equipment by employees. Therefore, absent discriminatory application of the workplace rule, employees had no right to use email for organizing and other purposes directed to terms and conditions of employment.
In Purple Communications, the Board decided that the Register Guard analysis was "clearly incorrect," because it focused too much on employer property rights and too little on the increasing importance of email to workplace communication. Rather than analogizing email to other equipment, the Purple Communications majority found it to be qualitatively different and more akin to a "natural gathering place" for employees on the employer's property. Because an employer may not ban discussions on its property during non-working time, an employer may likewise not ban conversations occurring through email.
The employer in Purple Communications had provided email accounts to its employees, but maintained a policy limiting use of email to business purposes only. The Board found this policy to be unlawful and adopted a presumption that employees who have been given access to the employer's email system in the course of their work are entitled to use the system to engage in discussions about terms and conditions of employment on non-working time, absent a showing of special circumstances that require broader restriction to maintain production or discipline.
The Board attempted to define its decision as "carefully limited" in two ways: First, the Board articulated that it only applies to employees who have already been granted access to email systems in the course of their work, and employers are not required to grant access; and second, in "special circumstances," an employer may justify a total ban on non-work use of email, even on non-working time, to maintain production or discipline.
Neither of the above limitations provide much comfort to employers. It will be unusual for employees to not already have access to email. Further, the Board specifically said that "it will be the rare case where special circumstances justify a total ban on non-work use of email by employees." Rather, an employer will be permitted to merely apply uniform and consistently enforced controls over the email system, such as prohibiting large attachments or audio/video segments, if such would interfere with the email system's functioning.
In an answer to concerns raised over the implications of its decision, the Board stated that an employer will be permitted to monitor email usage to ensure compliance with a business-use limitation for working time and that the email system is not used for unlawful purposes. "An employer's monitoring of electronic communications on its email system will similarly be lawful so long as the employer does nothing out of the ordinary, such as increasing monitoring during an organizational campaign, or focusing monitoring on union activists." Further, an employer may continue to notify employees that it monitors email for management reasons, and that employees do not have an expectation of privacy in their use of the email system.
The Board continues to issue decisions governing the workplace, non-union as well as union. The assumption is that the Purple Communications decision will be appealed to the federal courts, but until that occurs and a decision is rendered, most employers' electronic communications policies are now unlawful under the National Labor Relations Act. Employers are urged to immediately review their handbooks and to revise their policies and procedures if necessary so as to come into compliance with the new Board standard.