The National Labor Relations Board (NLRB or Board), in its December 11 Purple Communications, Inc. and Communications Workers of America, AFL–CIO decision, reversed certain Board precedent on employees’ use of employers’ email systems. The Board held that employees who have been given access to an employer’s email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions.

This decision overrules the Board’s 2007 holding in Register Guard, where it had determined that employees did not have a statutory right to use employers’ email for activities covered by Section 7 of the National Labor Relations Act (Act) — even when the employees were otherwise permitted to access the email system — without demonstrating a business justification, so long as the employer’s ban was not discriminatory. In Purple Communications, the Board called the Register Guard decision “clearly incorrect” because it “failed to adequately protect employees’ rights under the Act and abdicated its responsibility to adapt the Act to the changing patterns of industrial life.”

In holding that employees have a right to use their employers’ email systems for nonbusiness purposes, the Board “carefully limited” its decision by holding the following:

• The presumption applies to employees who have already been granted access to an employer’s email system in the course of their work and does not require employers to provide such access.
• 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.
• The decision does not apply to email access by nonemployees or any other type of electronic communications systems.

Notably, the newly created rebuttable presumption carves out a “special circumstances” exemption for justifying the restrictions that an employer imposes on the use of its email system. Although the Board did not provide detail about what constitutes “special circumstances,” it did note that “it will be the rare case where special circumstances justify a total ban on nonwork email use by employees.” The Board further noted that

an employer contending that special circumstances justify a particular restriction must demonstrate the connection between the interest it asserts and the restriction. The mere assertion of an interest that could theoretically support a restriction will not suffice. And, ordinarily, an employer’s interests will establish special circumstances only to the extent that those interests are not similarly affected by employee email use that the employer has authorized.

The Board’s decision, however, stopped short of determining whether the company’s policy was unlawful and remanded the issue to allow the employer to present evidence of special circumstances justifying the restrictions it imposed on its employees’ use of the email system.¹ The Board further noted that if Purple Communications’ policy was determined to be unlawful, remedial obligations would be limited to rescission of the policy and standard notifications to employees. The employer would not be obligated to pay back pay or offer reinstatement because the complaint only alleged that the company maintained an unlawful policy and not that it unlawfully enforced the policy against any employee.²

The Board decision was split three to two, with members Philip Miscimarra and Harry Johnson each drafting separate dissents. Member Miscimarra characterized the Board’s decision as “unfortunate and ill-advised” for the following reasons:

• There was no rational basis for the presumption that limiting an employer’s email system to business purposes constitutes “an unreasonable impediment to self-organization.”
• The majority came full circle from the Board’s finding — a mere 20 years ago — that employers can violate the Act by providing “pencils,” “paper,” “telephones,” and a “calculator” for employees to use during “paid time” and failed to accommodate the substantial employer property rights associated with its computer resources, which typically involve substantial acquisition and maintenance costs.
• The majority’s new statutory right adversely affects a significant number of other legal requirements, including many imposed by the Act, such as difficult questions regarding the Act’s prohibition of employer surveillance of protected activities, the ever-increasing need for employers to carefully monitor email systems for unauthorized usage and security intrusions, and the need to search and retrieve emails for a host of reasons. Additionally, the majority decision “wreak[s] havoc on the enforcement of one of the oldest, clearest, most easily applied of the Board’s standards — ‘working time is for work.’”
• The majority replaced a long-standing rule that was easily understood with a broad presumption and unspecified special circumstances, making it impossible for parties to have certainty beforehand regarding their rights and obligations.

Member Johnson also dissented on the ground that the Board’s new standard violates the First Amendment and departs from Section 8(c) of the Act by requiring companies to pay for and “host” speech that they do not own or support. Johnson also asserted that the new rule was not “carefully limited” to email systems, but that it can be extended to any kind of employer communication that employees have access to as part of their jobs. Johnson further disagreed with the majority’s opinion that email is the “new natural gathering place” for employees to communicate with one another and characterized the opinion as

a sweeping new rule that interferes with an employer’s well-established right to restrict employee use of its property based on convenience. This new framework threatens to undermine an employer’s right, as recognized by board and court precedent, to have a productive workforce. The new framework probably exceeds the jurisdiction of the Board to impose unfunded mandates on employers and certainly violates the First Amendment.

Although there will be differing opinions on the correctness of the Purple Communications decision, all will agree that this decision represents a fundamental change in the law and will inevitably impact employers’ electronic communications policies and practices. In an attempt to quell some of the potential issues raised by the employer and in amicus briefs, the Board addressed how its decision will impact employers’ ability to monitor their employees’ email accounts, stating:

Our decision does not prevent employers from continuing, as many already do, to monitor their computers and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for purposes of harassment or other activities that could give rise to employer liability.

The Board further held that any potential unlawful email surveillance charges will be held to the same standard as surveillance in the brick-and-mortar world — management officials may observe public union activity without violating the Act, as long as those officials do not do something out of the ordinary. Accordingly, “an employer’s monitoring of electronic communications on its email system will similarly be lawful so long as the employer does nothing out of the ordinary, such as increasing its monitoring during an organizational campaign or focusing its monitoring efforts on protected conduct or union activists.” The Board also held that the Purple Communications decision does not prevent an employer from notifying its employees that it monitors (or reserves the right to monitor) computer and email use for legitimate management reasons and that employees may have no expectation of privacy in their use of the employer’s email system.

Although this decision is subject to appeal and likely will be challenged with as much vigor as the Board’s D.R. Horton ruling, employers should revisit their electronic communications policies and practices and consult with counsel about proper changes to comply with Purple Communications as much as possible. At the very least, employers should endeavor to revise their electronic communications policies to avoid the categorical limitations on workers that is reflected in the Purple Communications policy that was the subject of this ruling.

Based on the rationale relied on by the majority of the Board, it is a possibility that this decision could be extended to provide workers with access to other employer property for the purposes of protecting employees’ Section 7 rights. In reality, this decision, along with the Board’s new final rule on election procedures, which is scheduled to go into effect on April 14, 2015, will create a more favorable environment for unions to organize employer workforces.

Endnotes

1 Purple Communications provides sign language interpretation services, employing video relay interpreters who provide two-way, real-time interpretation of telephone communications between deaf or hard-of-hearing individuals and hearing individuals. Each interpreter is assigned an email account on the company’s email system. Interpreters have access to company email accounts at their workstations, in call center break rooms, on personal computers and on smartphones. Purple Communications maintained an employee handbook, which contained an electronic communications policy prohibiting employees from, among other things, using electronic communications for (1) engaging in activities on behalf of an organization or persons with no professional or business affiliation with the company or (2) sending uninvited email of a personal nature.

2 The Board also held that this decision will equally apply to email cases pending before the Board, but that employers will have the opportunity to rebut the presumption.