A divided National Labor Relations Board has ruled that employees are presumptively entitled as a matter of law to use their employer’s email system to communicate regarding any term or condition of employment protected by Section 7 of the National Labor Relations Act, including union organizing efforts. Purple Communications, Inc., 361 NLRB 126 (December 11, 2014). In so doing, the Board majority strongly repudiated a seven-year-old precedent that held categorically that employees had no such right, and generated numerous questions regarding the scope of this new right as they relate to the employer’s property. Although acknowledging that the Board is obliged to “balance” the property rights of employers with the Section 7 rights of employees, the Board majority emphasized the degree to which email communications dominate today’s workplace and found that other alternatives, like social media platforms, are inherently inferior.
Purple Communications provides sign-language interpretation services using two-way video. To execute these services, employees are furnished with company email accounts that can be accessed from their desktops at work as well as from their personal computers and smartphones. The company’s policy, however, expressly prohibited employees from using those email accounts to, among other things, “[e]ngag[e] in activities on behalf of organizations or persons with no professional or business affiliation with the Company” or “[s]end uninvited email of a personal nature.”
Policies like this one, which limit the use of the employer’s electronic communications systems to work-related uses, have become relatively commonplace for various reasons, including the protection of productivity and privacy. And, under the NLRB’s 2007 decision in RegisterGuard, 351 NLRB 1110,that policy was plainly lawful. In RegisterGuard, the Board held that employees had no statutory right to use an employer’s email system for Section 7 purposes, in part because employees could still communicate regarding Section 7-protected matters via other channels.
Sensing a shift in the political winds, however, the union that had been working to organize interpreters at two facilities challenged those restrictions. The union argued that the restrictions unduly interfere with employees’ rights to organize and engage in other concerted activities protected under Section 7 of the NLRA. The Administrative Law Judge who initially heard the case ruled for the company, relying on RegisterGuard. On review of that decision, however, the NLRB called for briefing from the parties on the question of whether it should overrule RegisterGuard, leading many analysts to believe that the 2007 holding was in peril.
An About-Face On Employer Property Rights
These predictions proved accurate; Purple Communications explicitly overrules Register-Guard. The majority concluded that “the Register Guard analysis was clearly incorrect. . . . By focusing too much on employers’ property rights and too little on the importance of email as a means of workplace communication, the Board failed to adequately protect employees’ rights under the Act and abdicated its responsibility to adapt the Act to the changing patterns of industrial rights.” According to the majority, email communication has become so prevalent 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 majority’s decision turns its back not merely on RegisterGuard, but on decades of Board authority from Boards of every political composition. Since the 1980s, the Board has consistently ruled that employers are broadly entitled to prohibit non-work use of employer-owned equipment, such as copy machines and telephone systems. Not so now, at least with email systems. The majority seemed to acknowledge its departure from settled precedent, saying:
The telephone systems of 35 years ago, which the Board’s [prior] decisions [have] addressed, are, at best, distant cousins of the sophisticated digital telephone systems that are now prevalent in the workplace. Moreover, workplace use of even the newly sophisticated telephone systems is clearly different from employees communicating via email. In sum, we find that the Register Guard majority erred when it disregarded the material factual differences between email and other types of communications equipment that the Board has considered.
It went on, however, to attempt to minimize the departure. Accepting that the Board had previously said that “there is no statutory right of an employee to use an employer’s equipment or media,” the majority suggested that “question[ed] the broad pronouncements in the equipment cases, to the effect that employers may prohibit all nonwork use of such equipment. Those pronouncements are best understood as dicta.”
By characterizing its prior pronouncements as dicta, the majority disparaged the “supposed principle” that the employer can prohibit the employees from using, during off duty time, “employer equipment that [the employees] regularly use in their work . . . .” Specifically, the majority said that “[w]e reject its application here,” and, perhaps more ominously, “we question its validity elsewhere.”
Reach, Limits, And Open Questions
Plainly, Purple Communications represents a significant change in the NLRB’s approach to employer email use policies, and it may well represent a much more sweeping deprecation of employer property rights. The reach of the decision is simply unknowable at this juncture. The majority’s opinion, and the two dissenting opinions, hint at the various ways in which Purple Communications may play out in the innumerable factual scenarios in which might be applied.
Whether Purple Communications becomes a durable fixture in the Board’s jurisprudence remains to be seen. Both Purple Communications and RegisterGuard were party-line split decisions. It is this possible that Purple Communications will be no more lasting than its predecessor, and it is always possible that it could become the target of the new Congress.
While it remains the applicable standard, the Purple Communications majority opinion does contain some limits. The holding applies only to employers who have chosen to give employees access to their existing email systems; it does not require employers to create or expand access to anyone who previously had none. Moreover, the holding extends only to statutorily protected communications made on nonworking time. Although the Board has often taken an increasingly expansive view of Section 7’s coverage, employers may still—at least theoretically—prohibit the use of email systems for “personal” purposes, and may still restrict the use of email systems to work-related purposes during an employee’s working time. Finally, the Board left open the possibility that an employer may justify a total ban on the non-work use of email—including Section 7 use on non-working time—if the employer can demonstrate what it called “special circumstances” that would make such a ban necessary “to maintain production or discipline.”
At present, however, employers should exercise a great deal of caution in drafting and enforcing policies governing employee use of electronic communications systems, and should consult counsel in order to ensure that those policies are both effective and compliant with the latest developments in labor law.