On December 11, 2014, the National Labor Relations Board (NLRB) reversed existing law and ruled an employer that allows employees access to its email system for business purposes must also allow employees to use that email system during non-work time for union organizing. The NLRB said it would apply this rule retroactively. Purple Communications, Inc. (Dec. 11, 2014). Because most employers have policies on use of their electronic communication systems, this ruling likely makes those existing policies unlawful.

Then on December 12, 2014, the NLRB announced that it has adopted new "quickie" election rules that will become effective April 14, 2015. The new rules will be published in the Federal Register on Monday, December 15, 2014.

Challenged Policy and Prior Law

Like many employers, Purple Communications had an electronic communications policy that said computers, Internet access, voicemail, email and other company communication tools were for business use only. The policy also prohibited employees from using employer communication tools, including the email system, for organizations or persons that did not have a professional or business affiliation with the company or for sending uninvited personal email.

In 2007, the NLRB held in Register Guard that an employer could totally prohibit employees from using its email system for any non-business purpose. That meant employees did not have the right to use their employer's email systems for union organizing or other protected concerted activity. The NLRB reasoned that an employer's property rights outweighed the employees' use of their employer's property to communicate about union matters. However, an employer could not discriminate by allowing some non-business uses but denying non-business uses involving unions or other protected concerted activity.

New Decision and Its Rationale

In a 3-2 decision, the NLRB concluded that Register Guard had focused too much on an employer's property rights, gave insufficient weight to the significance of email as a workplace communication tool, and the law needed to adapt to the changing patterns of work life. The NLRB reversed Register Guard and held that employee use of employer email for union organizing or other concerted activity presumptively must be permitted during an employee's non-working time. The Purple Communications majority cited these guideposts for the new rule:

• The decision applies only to employees already granted access to an employer's email system for work (which, in many cases, is most employees).
• An employer can totally ban any type of non-work use of email but only if it can establish special circumstances that make a total ban necessary to maintain production or discipline (but the NLRB noted this justification would be rare).
• Absent a total ban justification, an employer can have uniformly enforced controls over its email system if it can prove those controls are necessary to maintain production and discipline.

This new decision does not require an employer to provide access to its email system to any employees it has not already given access. Nor does this decision allow an employee to use the email system for nonbusiness purposes while the employee is working, but enforcing that will become problematic.

Board Rejects Well-Reasoned Positions

The Purple Communication majority not only rejected the NLRB's earlier Register Guard rationale, but it rejected all of the well-reasoned arguments of the dissenters, including:

• The employer paid for, owned and used the email system as a business communication tool.
• Employees had numerous other means of communication about a union and conditions of employment, including in person, by phone and through the employees' own email accounts and through social media.
• The long-time and well-understood NLRB "non-working time" rule will become confused and troublesome. That is because, although employees might communicate via email while they were on break (or before and after work), other employees likely will read those emails on their working time, making enforcement a nightmare.
• An employer's right to monitor employee email on its system now will run into claims of unlawful employer surveillance of employee protected activity under the National Labor Relations Act.

Take Away for Employers

The NLRB has taken an easily understood and applied bright-line rule and changed it into a murky rule with nuances that will lead to many unfair labor practice charges. Today, most employers have electronic communication policies that comply with Register Guard — their email system is company property and is to be used at all times for company-related business only. Because the NLRB will apply this decision retroactively, those policies are and were unlawful.

While this decision likely will be appealed to a federal court of appeals, an employer who does not change its existing policy now can be found guilty of unfair labor practices for (a) having its policy, (b) disciplining any employee who violates its policy, and (c) engaging in objectionable conduct while successfully resisting a union organizing campaign.

Faegre Baker Daniels will provide an update on the new rules published in the Federal Register.