United States: NLRB Reverses Course On Employer Email, Creating Presumptive Right Of Employees To Use Work Email Systems For Union Organizing

In a game-changing 3-2 decision on December 11, the National Labor Relations Board (NLRB or Board) overruled its 2007 Register Guard decision, which upheld the right of employers to limit employee access to company email systems, calling it "clearly incorrect" and holding that employees have a presumptive right to use their employers' email systems for non-business purposes, like communications about union organizing, wages and working conditions, during "nonworking time."  Register Guard, which has long been criticized by organized labor, held that an employer may completely prohibit employees from using an employer's email system for Section 7 purposes, even if they are otherwise permitted access to the email system—without demonstrating any business justification—so long as the ban is not applied discriminatorily.

As we observed around this time last year, given the recent changes in the NLRB's composition, employer email policies were destined to become a battleground—and this case in particular looked like the NLRB's opportunity to overturn Register Guard.  Last Thursday's NLRB's decision in Purple Communications overrules the 2007 decision in Register Guard "to the extent it holds that employees can have no statutory right to use their employer's email systems for Section 7 purposes."

NLRB Chairman Mark Pearce, along with board members Kent Hirozawa and Nancy Schiffer, made up the majority.  Board members Philip Miscimarra and Harry Johnson filed separate dissents.

The Email Policy

After a vote to unionize failed at two California Purple Communications call center facilities, the company's electronic communications policy came under fire.  That policy restricted use of company equipment to "business purposes only"  and "strictly prohibited" employees from using the "computer, Internet, voicemail and email systems [...] in connection with [...] engaging in activities on behalf of organization[s] or persons with no professional or business affiliation with the Company [and] sending uninvited email of a personal nature."

Purple Communications claimed that the reason for prohibiting personal use of workstation computers was to prevent viruses from affecting the call center.  The union, not surprisingly, contended that this policy was overbroad and interfered with employees' Section 7 rights to engage in concerted activity.

In a decision issued on October 24, 2013, the Administrative Law Judge (ALJ) held that the company's rule prohibiting the use of company equipment for anything but business purposes did not violate the NLRA, refusing to consider the argument that Register Guard should be overruled.

In last Thursday's NLRB decision, the majority held that Register Guard paid too little attention to employees' right to communicate in the workplace about the terms and conditions of their employment and placed too much weight on employer property rights.  The majority also held that Register Guard failed to perceive the importance of email as a way for employees to engage in protected communications, noting that that importance had increased dramatically during the seven years since Register Guard was decided.  Finally, the majority concluded that Register Guard relied too heavily on precedent dealing with employer-provided equipment (e.g., bulletin boards, copy machines, and telephones) and failed to recognize that an email system is substantially different from any sort of property that the Board has previously considered, other than in Register Guard itself.

A "Carefully Limited" Decision?

The majority states that its decision is "carefully limited" in at least two ways:

  • "First, it applies only to employees who have already been granted access to the employer's email system in the course of their work and does not require employers to provide such access."
  • "Second, an employer may justify a total ban on nonwork use of email, including Section 7 use on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline.  Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline."

These so-called limitations may prove elusive to employers.  The realities of the workplace are that the vast majority of employers grant employees access to company email systems because employees need such access to perform their work.  The Board acknowledged as much in their decision.  For most employers, eliminating employee access will therefore be impractical and counterproductive.  Similarly, it remains to be seen whether employers will be able to demonstrate the undefined "special circumstances" (which the Board itself anticipates will be "the rare case") to justify a total ban on employee non-work use of email.  In addition, while the majority recognizes that an employer may continue to monitor employee use of its email systems, it may be difficult to determine if employees are actually on nonworking time when they are using company email for union organizing or other non-work purposes.  Employers may feel further constrained by the Board's warning not to engage in monitoring "out of the ordinary, such as increasing... monitoring during an organizational campaign or focusing... monitoring efforts on protected conduct or union activists."  However, according to the Board, an employer may still place content-neutral restrictions on employee email use, like limiting mass emails or large attachments and files, to the extent necessary to avoid disruption to its email systems, so long as those restrictions are uniform and consistently enforced.

The Dissenting Opinions

Members Phillip Miscimarra and Harry Johnson issued sharply worded dissents challenging the majority's reasoning on a number of different grounds.  Member Miscimarra rejected the majority's premise that limiting employee email to business use unduly restricts employees' ability to communicate.  According to Member Miscimarra, social media sites like Facebook and Twitter have been effective forms of facilitating concerted activities and have even resulted in "national uprisings."

Among other points, Member Johnson's dissent took issue with the majority's understanding of the realities of email use in the modern workplace and how it differs from other more traditional forms of communication.  Member Johnson observed that the rule set by the majority will lead to workplace disruptions and impact worker productivity.  As Member Johnson wrote:

"The technology of email does not respect the 'working time'/'break time' boundary.  In this respect, email does not care when it is sent, received, reviewed or composed.  The sender of an email may not know whether the recipient is working, and the recipient of an email may not know that the email is work related.  And, in either case, employees who wish to, can simply send, review, and respond to emails on their working time." 

What's Next?

Purple Communications will apply retroactively to cases that are currently pending before the Board.  The decision stopped short of finding the company's policy unlawful, instead remanding the question of whether the policy violated the NLRA back to the ALJ.  Regardless of the outcome before the ALJ, the Board's decision will likely be the subject of further litigation, including appeal to the federal courts.  In the meantime, employers may want to revisit whether email access is necessary for certain groups of employees, and to the extent it is, consider revising their electronic communications policies to comply with the holding in Purple Communications.  This would include limiting employee email use on nonworking time to Section 7 protected activities, like communications about wages, working conditions and union matters.

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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