The National Labor Relations Board (“NLRB”) ruled on December 11, 2014, in a 3-2 split, that employees who have been given access to their employer’s e-mail system for work purposes must be allowed to use their work email during nonworking time to engage in communications protected by the National Labor Relations Act (“NLRA”), such as communications regarding union organizing. Employers that maintain any policy restricting that use are now in violation of Section 8(a)(1) of the NLRA. This decision expressly overrules the NLRB’s 2007 Register Guard[1] decision, which had held precisely the opposite—that an outright ban on employee use of work email was lawful so long as it was indiscriminately applied because, among other reasons, the employer has a property right to control the use of its own equipment and property. Through its new decision, in Purple Communications, Inc., 361 N.L.R.B. No. 126, the NLRB has severely constrained that right and made it much easier for employees to engage in union activity at work.
The Handbook Policy At Issue
Purple Communications, a provider of sign language interpreter services, maintained the following electronic communications policy in its employee handbook (in relevant part):
INTERNET, INTRANET, VOICEMAIL AND ELECTRONIC COMMUNICATION POLICY
Computers, laptops, internet access, voicemail, electronic mail (email), Blackberry, cellular telephones and/or other Company equipment is provided and maintained by the [sic] Purple to facilitate Company 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.
. . . .
Prohibited activities—
Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other Company equipment in connection with any of the following activities:
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Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company.
. . . .
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Sending uninvited email of a personal nature.
This policy might look familiar, as it—in some form or another—has been regularly implemented in employee handbooks across the country since the 2007 Register Guard decision. Many employers further warn their employees that they should have no expectation of privacy in their use of work email because such use is limited to work-related matters and the employer reserves the right to monitor such emails. The NLRB specifically noted that employer monitoring of emails and policy statements regarding employees’ lack of a privacy interest remain lawful “so long as the employer does nothing our of the ordinary, such as increasing its monitoring efforts on protected conduct or union activistis.” Any change in monitoring in response to union activity or other protected conduct will likely be found to be an unfair labor practice.
The consequence of the NLRB’s new decision is that any ban on use of work email for non-business purposes in employee handbooks must now be re-visited, as well as any extension of this policy in other areas. Employers are no doubt tasked with a delicate balancing act and, unfortunately, Purple Communications does not even begin to address how this ruling will affect the kind of bleed-out policies identified above.
The Law at Issue
As noted in Benesch’s report just a few months ago on the first decision handed down by the NLRB in the Purple Communications case (which punted on the email issue), the law at issue is Section 8(a)(1) of the NLRA, which makes it an unfair labor practice to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7” of the NLRA—which are rights to engage in “other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Where a work rule would reasonably tend to chill employees in the exercise of these rights, an unfair labor practice lies in wait.
Employers are savvy enough to not maintain any rule or policy that explicitly restrict Section 7 rights, but it is less conspicuous policies—in recent years, policies governing employee use of social media—that the NLRB has focused on with unprecedented diligence. As a result, most employers have engaged their attorneys to carefully scrutinize their social media policies, but felt safe in their regulation of employee use of company owned technology. Absent successful appeal, this era is now over.
The Good News?
Purple Communications, as devastating as it is to employers, is not without its limits. The NLRB expressly noted two limitations on an employee’s right to use a work email system for non-business purposes—and one additional limitation can be implied. As to the two express limitations, the NLRB stated that the right “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 still maintain a comprehensive ban of nonwork-related emails where it demonstrates that “special circumstances make the ban necessary to maintain production or discipline.” These supposed limitations may, however prove to be illusory. The NLRB neglected to state what might constitute “special circumstances” that would allow an employer to prohibit nonwork time email use. More troubling, the NLRB specifically stated “we anticipate that it will be the rare case where special circumstances justify a total ban on nonwork email use by employees.” The Board went on to state that any justification for a particular restriction on non-work email use must be “demonstrated” and not “theoretical.” The Board’s language is a clear signal that the grounds for limiting nonwork-related emails will hardly ever be found to exist. .
Because the decision affirmatively states its application is to the use of work email during nonworking times, it can be implied that an employer can safely maintain a policy that prohibits use of email during working times—similar to a traditional non-solicitation policy. However, it remains to be seen how such a policy can be enforced when employers cannot reasonably track or control when emails are sent or read.
It should also be noted that Purple Communications does not sanction limits on email access by non-employees, nor does it address any other type of electronic communications system outside of email. The Board’s express statement that the decision does not apply to email access by non-employees raises the question of whether that will be an issue the Board will be looking to address in the near future.
Recommendation
It is a safe bet that this decision will be appealed, and may even be struck down by federal appellate courts. Nevertheless, for the time being, employers with policies restricting employee email use should consider modifying their policy to apply such restrictions only during working time. Employers should also be aware that restricting employee email use on nonwork time during a union election campaign may provide grounds for challenging or overturning the election results. In sum, employees who have already been granted access to the employer’s email system are lawfully entitled to use their work email for non-business reasons during nonworking times.
[1] Benesch Partner, and former NLRB Member, Peter Kirsanow was part of the 2007 majority deciding the Register Guard case.
