By Patrick J. Hoban*
On December 11, 2014, the National Labor Relations Board (“NLRB”), by a 3-2 vote of its members, declared that employers who give employees access to employer email systems must permit those employees to use the employer’s email system for “statutorily protected communications” under Section 7 of the National Labor Relations Act (“NLRA”) (i.e., union organizing, complaining about working conditions, criticizing supervisors) during nonworking time. Purple Communications, Inc., 361 NLRB No. 126 (December 11, 2014)(“Purple Communications”).
In ruling that Section 7 includes the right for employees with access to employers’ email systems to use employer systems for “non-work” communications, the NLRB overruled the seven-year old precedent established by Register Guard, 351 NLRB 110 (2007). Under Register Guard, employers could lawfully prohibit employees from using employer email systems for non-work purposes; including activities protected by Section 7, without demonstrating a business justification, so long as the employer did not apply its ban discriminatorily (e.g., prohibit only union organizing communications). However, in Purple Communications, the NLRB stated that Register Guard was “clearly incorrect,” “failed to adequately protect employees’ rights,” and “abdicated [the Board’s] responsibility to adapt the Act to the changing patterns of industrial life.”
The NLRB’s decision in Purple Communications turned on its evaluation of employer-operated email systems as the standard method of workplace communication among employees. Based on this, the NLRB reaffirmed the central importance of employee communications workplace to the exercise of Section 7 rights. The NLRB then considered: the expanded use of email in the workplace; the fact that employers frequently allow employees personal use of employer email systems; and the percentage of employees who telework. The NLRB concluded that, in many workplaces, email has “effectively become a ‘natural gathering place’” for employees, just like a lunch room. Accordingly, the NLRB concluded that the Register Guard decision overvalued employer property rights to their email systems and undervalued work email as a means of employee communication under Section 7.
To accommodate its rejection of Register Guard, the NLRB established a new analytical framework to evaluate employee use of employer email systems. Under the NLRB’s new analysis, there is now a legal presumption that employees (who have access to the employer’s email system for work purposes) have a right to use employer email systems for non-work purposes, including Section 7-protected communications, during non-working time. An employer may rebut this presumption only by demonstrating that special circumstances exist which justify restricting the employees’ rights to use employer email. However, any employer-asserted harmful consequences of email use restrictions must be actual, not speculative. Additionally, the NLRB cautioned that such circumstances will rarely justify total bans on employee non-work use of employer email.
The NLRB further stated that its decision only applies to employee use of employer email systems and not to non-employees’ use of employer email systems (e.g., use by non-employee union organizers). Additionally, the NLRB clarified that employers are not required to grant employees use of email systems if they do not already do so. Employers may also: continue to enforce justifiable restrictions on email use (e.g., prohibiting large attachments or audio/video segments); continue to monitor their computer systems for legitimate managerial reasons (e.g., prevention of email use for harassment); and notify employees they have no expectation of privacy when using employer email systems.
This new Purple Communications will take effect immediately – and will be applied to all pending NLRB cases. According to the Board, applying the new standard only prospectively would “continue a fair-reaching, wrongful denial of [employees’ Section 7] rights.” The NLRB also justified immediate application of the new standard by relying on an employer’s ability to present evidence of special circumstances that justify restrictions imposed on employees’ use of employer email systems.
Although many commenters believe the Purple Communications will be appealed to a federal circuit court, subject to further review, the decision has far-reaching implications. Employers must now rethink and potentially retool their employee email use policies. Most obviously, employers who grant employee access to their email systems for work purposes can no longer prohibit them from using email for non-work purposes during non-working time. The decision also leaves unanswered questions regarding employer monitoring of employee emails involving Section 7 activity under the NLRB’s unlawful surveillance and retaliation standards. Additionally, employers faced with employee emails criticizing terms and conditions of employment, supervisors, and/or management must carefully consider whether such communications are protected prior to disciplining or counseling employees. Yet, as a potential benefit to employers, if employees chose to engage in union organizing through employer email, employers may be able to take appropriate, lawful actions to educate their employees concerning the many negative consequences of union organization prior to the filing of a representation petition.
In the end, Purple Communications creates a new Section 7 right for employees to use employer email systems for protected concerted activity during non-working time. Employers should review their current email use polices in light of this decision and consider how to best adjust them to maintain effective and efficient operations while complying with the law. Zashin & Rich will provide additional updates on this issue and will assist employers seeking compliance with this new standard.
*Patrick J. Hoban, an OSBA Certified Specialist in Labor and Employment Law, practices in all areas of private and public sector labor relations. For more information about the Purple Communications decision or labor & employment law, please contact Pat | pjh@zrlaw.com | 216.696.4441
