Most employer email policies are based on the December 2007 National Labor Relations Board decision in Register Guard, which held that employers can ban all non-business email communications by employees, including communications protected by Section 7 of the National Labor Relations Act. Now those policies may have to be rewritten. On December 11, 2014, the Board decided Purple Communications. In Purple Communications the Board, by a 3-2 margin, overturned Register Guard and held that employers, except in very limited circumstances, must permit employees to use corporate email systems for union organizing and to discuss terms and conditions of employment during non-work time. Because Section 7 of the NLRA applies to all employers, not just those who are unionized, the decision in Purple Communications affects virtually every U.S. employer which has a corporate email system.

The Board majority in Purple Communications found fault with Register Guard for three main reasons. First, it rejected the premise in Register Guard that the employer’s property interest in its email system outweighed the employee’s “core Section 7 right to communicate in the workplace about their terms and conditions of employment.” Second, it rejected Register Guard‘s analogy of a corporate email system to other types of employer-owned equipment such as bulletin boards, copiers, and telephones. The majority believed that email is distinguishable from these other categories of equipment because the non-work use of email is less costly and disruptive than non-work use of other employer property. And third, the Board majority concluded that Register Guard failed to appreciate the importance of email to workplace communications. The majority viewed email as “a critical means of communication, about bot h work-related and other issues,” that has “effectively become a new ‘natural gathering place'” where employees can congregate to share interests (perhaps replacing the water cooler). As the majority viewed it, because workplace communications among employees is the backbone of Section 7 rights, and email serves as the predominant form of workplace communication, restrictions on email communications inherently interfere with Section 7 rights in an unlawful way.

Employers everywhere are hoping the decision in Purple Communications is appealed, and the decision is stayed pending the appeal. With the Board divided, and both dissenting members writing separate, stinging, dissents, it is likely an appeal will be taken. In the meantime, barring a stay, there are several key implications for employers as a result of Purple Communications:

• Even though the Board majority announced a new rule wholly inconsistent with the rule that had prevailed since Register Guard was decided in December 2007, the Board concluded it would not work a manifest injustice to apply its ruling retroactively. Therefore, employers should be prepared to revise their policies governing corporate email to conform to the Purple Communications‘ decision after the appeal period expires or, if an appeal is taken, if a stay is not issued.
• The Purple Communications‘ decision does not give rights to non-employees to access an employer’s email system. Thus, employers are not required to make their corporate email system available to unions and other non-employees for union organizing or any other Section 7 activities.
• The Board stated that the right to use corporate email for Section 7 purposes applies “only to employees who have already been granted access to the employer’s email system in the course of their work.” Therefore, employers do not have to give employees who do not use corporate email to do their jobs access to the corporate email system for union organizing or other Section 7 activities. In light of this, employers may want to reevaluate whether to allow email access at all to employees who do not need email to do their job, and consider whether such access is necessary to perform the employee’s job functions.
• While the Board suggested that a total ban on non-business use of corporate email would be permissible if the employer could demonstrate “special circumstances” that “make the ban necessary to maintain production or discipline,” the Board stated that it would “be the rare case where circumstances justify a total ban on nonwork email use by employees.” Thus, most employers that ban all non-business use of corporate email will be required to rescind that policy.
• The Board emphasized that non-solicitation provisions of email policies which effectively bar employees from using corporate email for union organizing would likely be unlawful. Therefore, employers most likely will need to rescind policies prohibiting use of corporate email for solicitation.
• Purple Communications limits employee’s right to use corporate email for Section 7 activity to “non-working time.” Employers should draft their email policies to include that restriction.
• Purple Communications recognizes that an employer has the right to establish “uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.” The example given by the Board was “prohibiting large attachments or audio/video segments, if the employer can demonstrate that they would interfere with the email system’s efficient functioning.” The employer’s email policy should include such controls.
• Purple Communications‘ majority stated that “[o]ur decision does not prevent employers from continuing, as many already do, to monitor their computers and email systems for legitimate management reasons, such as insuring productivity and preventing email use for purposes of harassment or other activities that could give rise to employer liability.” The Board did warn, though, that “[a]n employer that changes its monitoring practices in response to union or other protected, concerted activity, however, will violate the Act.” Therefore, employers may maintain broad rights to monitor corporate email, but cannot change their monitoring practices in response to Section 7 activity.
• Employers should consider the impact of Purple Communications on other employer-provided electronic communications platforms, such as instant messaging or texting. While the Board majority stated that its decision was limited to email systems, that was only because email systems was the sole issue before it. The majority stated in a footnote that “[o]ther interactive electronic communications, like instant messaging or texting, may ultimately be subject to a similar analysis…”

We will be discussing the status of this case at our April Workshop.

By Jon E. Brightmire, jbrightmire@dsda.com