United States: NLRB Reverses Board Precedent On Employer Email Policies

On December 11, 2014, a divided National Labor Relations Board (NLRB) − split along party lines − overturned existing precedent regarding an employer's right to control its email system, and held that employees have a statutorily protected right to communicate with each other about nonwork matters during nonbusiness hours over employer email accounts. This decision significantly impinges on employers' property rights and requires that employers review their existing email-use policies.

In Purple Communications, Inc., the employees challenged their employer's email policy by claiming that it interfered with their Section 7 rights. The email policy at issue limited email use to "business purposes only," expressly prohibited employees from "engaging in activities on behalf of organizations or persons with no professional or business affiliation with the company," and prohibited employees from "sending uninvited email[s] of a personal nature."

Under previously existing NLRB precedent, such a policy would have complied with the National Labor Relations Act. In a complete about-face, however, the NLRB reversed precedent and found the policy to be illegal. Starting with the well-settled principle that the workplace is "uniquely appropriate" and a "natural gathering place" for employee organizing efforts, the NLRB majority reasoned that "email is a large and ever-increasing means of employee communication for a wide range of purposes" and that email has effectively become the new "natural gathering place" for employee communications. Thus, under the guise of "adapt[ing] the Act to changing patterns of industrial life," the NLRB held that:

"We will presume that employees who have rightful access to their employer's email systems in the course of their work have a right to use the email system to engage in Section 7-protected communications during nonworking time. An employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees' rights."

In two strongly worded dissents, Members Misciamarra and Johnson rebuffed − among other things − the NLRB's assumption that employees need employer email accounts to communicate effectively with one another. Although the dissenters noted the appeal of using an employer's email system, the dissenters highlighted that employees have more social media options than ever before, and that they are often "more effective, more user-friendly, and more conducive to facilitating concerted activities than employer email systems." Despite the well-reasoned dissents, the NLRB's majority decision remains the law unless it is overturned on appeal.

The NLRB's majority decision has significant ramifications for employers. If an employer grants its employees access to its email system for work-related purposes, those employees now have the right to send nonwork-related emails over that system during nonworking time if the emails constitute protected, concerted activity. Nevertheless, employers should be cognizant of certain limiting aspects of the decision. Specifically:

  • The decision applies only to employee emails that constitute protected, concerted activity. Employers still may take action against employee usage that does not fall under the category of protected, concerted activity.
  • The decision holds that employees have a right to use an employer's email system only if that employer has chosen to give them access to the email system for work purposes. Employers, therefore, still may prohibit employees from using their email systems completely.
  • Employees who are granted access to an employer's email system have a right to use it for protected concerted activity only if it is used during "nonworking time."
  • The decision does not grant nonemployees access to an employer's email system.
  • An employer may rebut the presumption of employee access to email by demonstrating special circumstances that make restriction necessary to maintain production or discipline. As the majority notes, such situations will be extremely rare, and an employer faces a high and difficult burden.
  • The decision only addresses employee access to email. It does not address their access to employers' other electronic communications systems.
  • The decision recognizes that employers may establish uniform and consistently enforced restrictions, such as prohibitions against large attachments or bans of video or audio attachments, which may be necessary to ensure a system's efficient functioning.
  • The decision recognizes that many employers monitor their employees' email use to ensure productivity and prevent misuse, and it states that they may continue to do so. The majority indicates that it will address claims of unlawful surveillance through the existing unlawful surveillance framework.

As a result of this decision, many employers will be forced to review and adjust existing policies and procedures. In so doing, employers will face various strategic decisions. Please contact McGuireWoods' labor team for any assistance you might need in responding appropriately.

In addition, the Purple Communications, Inc., case is yet another example of the current NLRB's willingness to overturn well-settled NLRB precedent. As we have detailed in previous alerts – NLRB's General Counsel Issues Directive That McDonald's Can Be "Joint Employer" With Franchisees and NLRB Overrules Board Precedent and Institutes New Remedy in Successorship Cases – we expect the NLRB to continue issuing decisions that significantly alter well-established law. Therefore, employers should continue to monitor developments from the NLRB closely.

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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