Client Bulletin #545

The National Labor Relations Board decided 3-2 last week that employees covered by the National Labor Relations Act are presumptively entitled to access an employer's email systems for communicating under Section 7 of the NLRA (i.e., protected concerted activities including union organizing) during their non-working time if the employer gives the employees access to the email system for business communication.

The Board majority in Purple Communications consisted of the three Democrats, Chairman Mark Gaston Pearce, and Members Nancy Schiffer and Kent Hirozawa. The majority decision overrules a 2007 decision by a Republican majority Board in Register Guard. The Purple Communications majority decided that the Board in Register Guard had improperly weighed the competing interests between employer property rights and employee Section 7 rights, given the realities of the modern workplace in which email is a normal mode of communication. The two Republican Members of the Board, Philip Miscimarra and Harry Johnson, filed separate dissents, demonstrating the partisan split in the case.

In overruling Register Guard, the Board majority in Purple Communications asserted that email was the modern-day equivalent of the workplace "water cooler" for employee communications. According to the Board majority, employees presumptively have a right to communicate in that space, absent a showing that employer-imposed restrictions are necessary to maintain production and discipline. (Necessary by what standard? Unanswered.) The Board majority went to lengths to defend itself from anticipated criticism that it was making an expansive change of settled law, asserting that its decision was carefully limited:

First, it applies only to employees who have already been given 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. Finally, we do not address email access by nonemployees, nor do we address any other type of electronic communications systems, as neither issue is raised in this case.

Of course, some employers would be expected to contend that it is completely unrealistic to deny employees access to the company email system. And, presumably, the current Board would disapprove of many, if not most, "tailored" bans and find that they had a "chilling effect" on Section 7 activity.

The two dissenting Board Members attacked the majority ruling on numerous grounds, arguing (1) that the change from Register Guard was unneeded because employees had multiple means of communication, electronic and otherwise, in the modern workplace, (2) that the decision was an unwarranted intrusion on the employer's well-established rights to restrict use of its property based on convenience and to have a productive workforce, (3) that the standard being announced by the Board was confusing and difficult to apply, (4) that the decision would not, in fact, be limited simply to employer email systems, but instead, would be expanded over time to other communication modes, and (5) that the Board's decision violates the free speech protections of the First Amendment to the U.S. Constitution.

The Board's decision in Purple Communications is likely to head to a federal appeals court for review, and perhaps even to the Supreme Court, given the practical importance of this decision to employers, the involvement of employer associations and organized labor groups in the case, and the serious First Amendment questions presented. In the meantime, employers may want to respond to the decision by modifying their policies on employee use of email systems, and even consider prohibiting non-work-related use altogether. Given the legal nuances and Human Resources implications, employers should consult with their labor counsel before taking action.