The National Labor Relations Board (NLRB) issued its decision in Purple Communications, Inc. & Communication Workers of America, AFL-CIO today, holding that employees who are given access to company email accounts have a right to use those email accounts for activities protected by federal labor law, including union organizing. The decision is a significant break with past NLRB rulings and may require many employers to change their email policies. Although the ruling is likely to be challenged in court, employers should be aware of it and take steps to comply with it, including establishing uniform email policies that show that they are not targeting protected activities.

The NLRB’s Ruling

The NLRB’s ruling holds that when employees have been given access to their employer’s email system, those employees are presumptively permitted to use that email system on non-working time for protected communications. Employers can justify total bans on non-work use of email only if they can show a necessity for maintaining production or discipline. This ruling is a significant change in the law and explicitly overrules the NLRB’s 2007 decision to the contrary.

Purple Communications, Inc. (“the Company”) is a provider of sign language interpretation for telephone calls. Its employees were assigned accounts on the Company’s email system. The Company’s email policy limited use to business purposes only and included specific bans on using its email system for “engaging in activities on behalf of organizations . . . with no . . . affiliation with the Company” and “sending uninvited email of a personal nature.” During a union organizing drive, the union filed unfair labor practice charges with the NLRB, arguing that these policies interfered with the employees’ rights under Section 7 of the National Labor Relations Act (“Section 7”).

The NLRB, in a 3-2 decision, agreed. The majority found that employees who are given access to a company email system as part of their work have a Section 7 right to use that system to discuss the terms and conditions of their employment during non-working time. The decision stated that an employer can justify a total ban on non-work use of its email system only if it can show special circumstances that “make the ban necessary to maintain production or discipline”—a very high hurdle. The NLRB did note, however, that this decision applies only to employees who have access to a company email system; it does not impose any obligation to give an employee access to that system. It further noted that this decision does not apply to any other forms of communication.

Why the NLRB Overruled Register Guard

This decision is a significant departure from prior rulings of the NLRB. In 2007, the NLRB issued the Register Guard decision, in which it held that employees did not have a right to use employer email systems for Section 7 activities. In today’s decision, the NLRB stated that Register Guard was “clearly incorrect,” because it put too much emphasis on property rights of employers at the expense of email’s significance to workplace communication.

First, it found that—as the Register Guard majority had noted—email is central to workplace communication, and it has become even more important in the years since the Register Guard decision. Next, the NLRB held that a workplace is a natural place for employees to communicate with one another. Finally, it found that the Register Guard decision was wrong when it found that email was “analogous to employer-owned equipment.” Because email systems can accommodate thousands of interactions at once, the argument that employee use of email for Section 7 activity prevents other uses of the system does not apply. In other words, unlike a telephone line or bulletin board, where use and space are limited, email can accommodate the extra activity.

Implications for Employers and Recommended Steps

As the NLRB recognized in its opinion, this decision does not begin to resolve all questions about employees’ use of an employer’s email system, and it does not address communications via other electronic means. For example, the decision did not address the question of whether unions have the right to use an employer’s email system to communicate with employees. The decision, however, did make some things clear. First, although an employer is not required to grant all employees access to its email system, employees who do have access to email must be permitted to use it for statutorily protected communications on non-working time, with limited exceptions. Second, an employer may restrict or totally ban non-work emails on its system only if it is necessary for employee production or discipline. Such cases are likely to be rare, and restrictions on email use must be justified by legitimate business interests such as preventing damage to or overloading of the system, which might occur if employees are sending large attachments with their emails. Employers may also inform employees that their communications may be monitored. Finally, employers may monitor employee email communications for legitimate management purposes if this is done in a standard way that does not target protected activity.

Following this decision, employers should:

• Rewrite any email policies that totally ban or restrict non-work use of the employer’s email system, making sure that any restrictions in the new policy are supported by a legitimate business interest
• Notify employees that their email communications may be monitored for legitimate management purposes
• Establish standard email monitoring procedures to ensure that there is no appearance that the employer is targeting protected activity or union activists

This area of law is likely to continue to develop. Contact counsel for advice on how to comply with the NLRB’s new rule.