The much anticipated decision overturned the NLRB’s 2007 Register Guard decision and adopted a presumption that employees are entitled to use their employer’s email system to engage in Section 7 activity while on nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions.
In 2007, the National Labor Relations Board (NLRB) issued The Guard Publishing Company d/b/a The Register-Guard, 351 NLRB 1110 (2007), holding that an employer does not violate Section 7 of the National Labor Relations Act by maintaining a policy that limits the use of electronic communications systems for “nonjob-related solicitations.” The NLRB held that employees had “no statutory right to use the [employer’s] e-mail system for Section 7 matters” and reasoned that an employer has a property right to “regulate and restrict employee use of company property,” including its electronic communications. Likening computer systems to any other communication device, the NLRB extended to computer systems the principle that allows an employer to restrict for Section 7 purposes other forms of communication, such as bulletin boards, telephones, and copy machines.
In Purple Communications, the NLRB rejects the Register Guard holding as relying too heavily on employers’ property rights and adopts “a presumption that employees who have been given access to the 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.” Relying on the evolving and increasing role of email as “a critical means of communication” and information sharing, the NLRB differentiated email systems from other employer communications-related equipment and deemed email as effectively “a ‘natural gathering place,’ pervasively used for employee-to-employee conversations.” An employer has the burden of rebutting the presumption by showing that “special circumstances necessary to maintain production or discipline justify restricting employees’ rights.”
The NLRB articulated certain limitations to its decision. Employers are not required to provide email access to employees; the presumption applies only to those employees to whom the employer has already granted access. The decision does not require that employers grant nonemployees access to email systems. The NLRB acknowledged that, although likely a rare occurrence, an employer may justify a total ban on nonwork use of email, including Section 7 use, if the employer is able to demonstrate that the ban is necessary to maintain production or discipline. Absent special circumstances that justify a total ban on nonwork use of email, an employer may apply limitations and controls on its email system to the extent that they are necessary to maintain production and discipline or to prevent interference with the email system’s efficient functioning, as long as the restrictions are uniform and consistently enforced.
For example, the NLRB specifically wrote that the Purple Communications decision does not prevent an employer from prohibiting “large email attachments or audio/video segments” if the attachments interfere with the email system. The NLRB also wrote that its decision does not prevent employers from monitoring 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.”
Notably, the NLRB will apply the Purple Communications decision retroactively to cases currently pending. It reasoned that employers with email policies impacted by the decision have the ability to rebut the presumption on remand by presenting evidence of relevant special circumstances, which lessens any potential injustice caused by retroactive application of the new standard.[1]
With the rise of nonemail avenues for engaging in union organizing on social media, and given employers’ ability to access email communications made on their own systems, it is questionable whether Purple Communications will have a significant workplace impact. However, particularly in light of the NLRB’s recent focus on employer handbook policies, employers should review and update electronic-use policies that globally prohibit nonwork use of employer email systems and ensure that any restrictions on the use of email systems are justified by and can be demonstrably connected to special circumstances. Employers should also notify employees that their use of their workplace email system could be monitored consistent with the guidance articulated in Purple Communications.
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[1]. The NLRB remanded the case to the administrative law judge to determine whether the specific policy at issue in the case was unlawful under the NLRB’s new rule. As a result, although it is certain that the NLRB’s theory will be challenged in the federal circuit courts, there is likely no appealable issue at this time.