United States: NLRB Expands Employees' Right To Use Employers' Email For Union Organizing

Board Dissenters Criticized the Majority for Replacing a Long-Standing, Easily Understood Rule with One That Is Confusing, Difficult to Apply and Likely to Create Problems for Employers

Kenneth A. Jenero is a Partner in our Chicago office.

HIGHLIGHTS:

  • On Dec. 11, 2014, a sharply divided NLRB issued its much-anticipated decision in Purple Communications, overruling Register Guard and significantly expanding the right of employees to use their employers' email systems for union organizing and other activities protected by Section 7 of the NLRA.
  • The two strong dissenters on the Board argued that the new standards represent an ill-advised departure from established legal principles, including an employer's "'basic property right' to 'regulate and restrict employee use of company property.'"
  • Under Purple Communications and other recent rulings expanding the scope of Section 7, employees who are given access to their employer's email system for business purposes now will be able to use that system on non-working time to engage in a wide range of protected communications, including union support and comments critical of the employer's employment-related policies, practices and management decisions. Other types of electronic equipment and communications, such as instant messaging or texting from employer-owned smartphones and other devices, also may be affected.

In its 2007 decision in Register Guard, the National Labor Relations Board (NLRB or Board) held that an employer may completely prohibit employees from using its email system for non-business purposes – including union organizing, discussion of terms and conditions of employment, and other activity protected by Section 7 of the National Labor Relations Act (NLRA or Act) – as long as the ban was not applied discriminatorily. Employees had no statutory right to use their employer's email system for union organizing or other Section 7-protected activities on working time or non-working time. The fact that employees were permitted to use the employer's email system for business purposes did not provide a legal basis for allowing expanded use of the system for non-business purposes. The Register Guard decision was rooted firmly in the employer's basic rights to control the use of its property, manage its business and maintain productivity in the workplace.

On Dec. 11, 2014, a sharply divided NLRB issued its much-anticipated decision in Purple Communications, which overruled Register Guard and significantly expanded the right of employees to use their employers' email systems for union organizing and other statutorily protected activities. According to the Board majority in Purple Communications, "the Register Guard analysis was clearly incorrect" and "[t]he consequences of that error [were] too serious to permit it to stand." In their view, Register Guard "focused too much on employers' property rights and too little on the importance of email as a means of workplace communication."

To remedy this perceived problem and adequately protect employees' rights under the NLRA, the Purple Communications majority held that once an employer gives employees access to its e-mail system in the course of their work, the employees must presumptively be permitted to use the email system for union organizing and other statutorily protected communications on nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions. To meet this burden, the employer must articulate the particular interest at issue and how that interest supports the email use restriction it has implemented.

The Board majority decided that it was appropriate to apply the new standards announced in Purple Communications retroactively to that case, as well as all other pending cases in whatever stage. The majority found no "manifest injustice" in doing so even though they specifically acknowledged that the email policy maintained by Purple Communications was completely lawful under the standards established in Register Guard.

The Purple Communications majority rejected the strong dissents of the two Republican members of the Board, who argued that the new standards represent an ill-advised departure from established legal principles, including an employer's "'basic property right' to 'regulate and restrict employee use of company property.'" As one dissenting Board member noted:

The Act has never previously been interpreted to require employers, in the absence of discrimination, to give employees access to business systems and equipment for NLRA-protected activities that employees could freely conduct by other means.

The dissenters also criticized the majority for replacing a long-standing rule that was easily understood with one that is confusing, difficult to apply, and predictably will create intractable problems for employers in many other areas.

Purple Communications' Policy on Electronic Communications

Purple Communications provides sign-language interpretation services. Its employees provide two-way, real-time interpretation of telephone communications between deaf and hard-of-hearing individuals and hearing individuals. Purple Communications assigned its interpreters individual email accounts on its email system which they used in connection with their work on a daily basis. The interpreters could access their email accounts on the computers at their workstations, computers in the break areas, and their personal computers and smartphones.

Since June 2012, Purple Communications maintained an electronic communications policy providing that:

  • All computers, laptops, Internet access, voicemail, email, Blackberry, cellular telephone and other company equipment are provided to facilitate the company's business.
  • All information and messages stored, sent and received on these systems are the sole and exclusive property of the company, regardless of the author or recipient.
  • All such equipment and access should be used for business purposes only.
  • Employees were prohibited from using the systems to engage in activities on behalf of organizations or persons with no professional or business affiliation with the company, or to send uninvited email of a personal nature.

In the fall of 2012, the Communications Workers Union filed petitions to represent the interpreters that resulted in Board-conducted elections at seven of Purple Communications' facilities. The union filed objections to the results of the elections at two facilities, including an objection asserting that the electronic communications policy interfered with the interpreters' freedom of choice in the election. The union also filed an unfair labor practice charge regarding the policy, which was used as a basis for a complaint supported by the NLRB's general counsel.

In the hearing before the administrative law judge, the general counsel argued that Purple Communications' broad prohibition on employees' personal use of electronic communications, although authorized by Register Guard, substantially interfered with Section 7 activity. Because Register Guard represented the Board's prevailing view on the subject, the judge applied it and rejected the general counsel's arguments. The general counsel then advanced the case to the Board, arguing that it should overrule Register Guard and apply a new legal framework that would prohibit employers from lawfully maintaining a policy banning all non-business-related use of email systems that employers are allowed to use for their work.

The Board's Purple Communications Decision

A three-member Board majority agreed with the general counsel's position that Register Guard was wrongly decided and overruled its holding that, under ordinary circumstances, even employees who have been given access to their employer's email system have no right to use it for Section 7 purposes. According to the Purple Communication's majority, the twin premises of the Register Guard decision were that email systems are the equivalent of other employer communications-related equipment, including bulletin boards, copy machines, public address systems and telephones, and employers are free under the Act to ban any non-work use of such equipment by employees. The majority then stated and explained the basis for the conclusion that the Register Guard analysis was incorrect in several significant respects:

  • The Register Guard decision undervalued employees' core Section 7 right to communicate in the workplace about their terms and conditions of employment, while giving too much weight to employers' property rights.
  • The Register Guard majority inexplicably failed to perceive the importance of e-mail as a means by which employees engage in protected communications, an importance that has increased dramatically during the seven years since Register Guard issued.
  • The Register Guard majority mistakenly placed more weight on the Board's equipment decisions than those precedents can bear. In any event, email is sufficiently different from bulletin boards, copy machines, public address systems and the other types of equipment involved in prior Board decisions so as to render those decisions inapplicable.

The Board majority's statement of the issue in Purple Communications itself signaled what was to come in its decision. According to the majority, "at issue in the case is the right of employees under Section 7 of the National Labor Relations Act to effectively communicate with one another at work regarding self-organization and other terms and conditions of employment." The majority proceeded to observe that the workplace is "uniquely appropriate" and "the natural gathering place" for such communications, and that the use of email as a common form of workplace communication had expanded dramatically in recent years. It then announced a new standard for determining the legality of employer restrictions on the use of employer-provided email systems, which "seeks to accommodate employees' Section 7 rights and their employers' legitimate interests."

Under the new standard, the Board presumes that employees who have rightful access to their employer's email system in the course of their work have a right to use the email for union organizing, discussions about terms and conditions of employment, and other statutorily protected communications on nonworking time. To rebut this presumption, an employer must demonstrate that special circumstances necessary to maintain production or discipline justify restricting its employees' rights. According to the majority, because limitations on employee communications should be no more restrictive than necessary to protect the employer's interests, it "will be a rare case where special circumstances justify a total ban on non-work email use by employees." The majority also noted that an assertion of special circumstances will require that the employer articulate the legitimate interest at issue and demonstrate how that interest supports the email use restrictions it has implemented. The mere assertion of an interest that could theoretically support a restriction will not suffice.

The Purple Communications majority noted that its decision was a limited one:

  • The decision only addressed email systems; it did not address other types of electronic communications systems that were not at issue in the case. But the majority expressly noted that "[o]ther interactive electronic communications, like instant messaging or texting, may ultimately be subject to a similar analysis ... ."
  • The decision was limited to email use by employees; "We do not find that nonemployees have rights to access an employer's email system."
  • The decision applies only to employers who provide their employees with access to their email system; it does not require an employer to grant employees access to its email system where it had not chosen to do so.
  • The presumption applied by the majority is expressly limited to non-working time (e.g., breaks, meal periods, and periods before and after an employee's scheduled work hours). Absent evidence of discrimination, it does not give employees the right to use the employer's email system during working time.
  • The decision permits employers to rebut the presumption by showing that special circumstances make the presumption inappropriate in its workplace.
  • The decision does not prevent an employer from establishing uniform and consistently enforced restrictions, such as prohibiting large attachments or audio/video segments, if the employer can demonstrate that they would interfere with the email system's efficient functioning.
  • The decision does not prevent employers from monitoring their computers and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for purposes of harassment or other activities that could give rise to employer liability.

Impact on Employers

From an employer's perspective, Purple Communications represents another NLRB-driven intrusion on an employer's property rights and managerial prerogatives under the guise of protecting employees' Section 7 rights. At the same time, the Board has been expanding the scope of employees' Section 7 rights as evidenced by its decisions finding unlawful a wide variety of seemingly legitimate work rules and policies prohibiting such things as harassment, demeaning or derogatory statements, disruptive workplace gossip, offensive or abusive comments, etc.

For the first time, employers cannot lawfully maintain non-discriminatory and uniformly applied policies restricting email use by non-supervisory employees to business purposes only. They must permit these employees to use the employer's computers and email system to engage in union organizing activity and other Section 7-protected activities. Given the Board's expansion of Section 7, this includes not only communications supporting a union, but also those that are critical of the employer's employment-related policies, practices and management decisions. Furthermore, as the Purple Communications majority suggested, its analysis likely will be extended to other types of electronic equipment and communications, such as instant messaging or texting from employer-owned smartphones and other devices.

As noted by the dissenting Board members, the Purple Communications decision will create uncertainty, litigation about what are and are not permissible "special circumstances" to justify restrictions on employee email use, and significant legal issues in other areas of Board law. The majority itself acknowledged, for example, the concerns of employers that monitoring email systems – even when done for legitimate management reasons – will make them vulnerable to allegations of unlawful surveillance of employees' union and other Section 7-protected activities. The Board majority's only response in Purple Communications – which is not particularly comforting to most employers – is that:

We are confident ... that we can assess any surveillance allegations by the same standards that apply to alleged surveillance in the bricks-and-mortar world.

Notwithstanding that it was decided by a strongly divided Board, the majority's decision in Purple Communications is now the controlling precedent on the subject of permissible employer restrictions on employees' use of employer computers and email systems. The NLRB's regional offices and general counsel will rely on Purple Communications when ruling on election objections and deciding whether or not to issue unfair labor practice complaints. Accordingly, employers who are interested in avoiding objections and minimizing the risk of unfair labor practice charges, will review and revise their policies as necessary to ensure compliance with Purple Communications and other recent NLRB decisions expanding the scope of employees' Section 7 rights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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