In 2007, the National Labor Relations Board (NLRB) decided in Register Guard that employers could limit employee use of company email systems to business purposes so long as the limitation was applied consistently to all non-business communications. In other words, the policy could not be focused solely on prohibiting “protected concerted activity,” such as union organizing, or discussing hours, wages, and other terms and conditions of employment.

Unfortunately, the NLRB recently overruled the Register Guard decision. In Purple Communications, Inc., the Board decided that electronic communication policies prohibiting employees from using company email systems for personal purposes may be unlawful (the Board remanded the case for further proceedings). In other words, under certain circumstances, employees have the right to use an employer’s email system to engage in protected communications under the National Labor Relations Act (NLRA).

This ruling affects most private sector workplaces, whether unionized or not. Accordingly, employers concerned about NLRB scrutiny should review their current policies and make appropriate changes to comply with the new precedent.

Purple Communications, Inc.’s Policy

In 2012, the Communication Workers of America filed an unfair labor charge against Purple Communications, Inc. after the union lost an election. Among other things, the union argued that the company’s electronic communications policy violated Section 7 of the National Labor Relations Act. Section 7 guarantees employees the right to form, join or assist labor organizations or “engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The NLRB and courts have interpreted Section 7 to protect discussions about wages, hours, and working conditions.

Purple Communication’s policy stated that the company’s email system “should be used for business purposes only.” The policy elaborated that employees could not use email in connection with “[e]ngaging in activities on behalf of organizations or persons with no professional or business affiliations with the Company” or “[s]sending uninvited email of a personal nature.”

The union urged the NLRB to overrule the Register Guard decision, arguing that any email policy that does not specifically allow employees to engage in Section 7-protected activity is unlawful. Interestingly, the union also conceded that the company’s policy complied with the Board’s holding inRegister Guard.

NLRB’s Ruling

The NLRB ruled that Purple Communication’s policy may have violated Section 7 (and overruled Register Guard), in large part because the policy prohibited employee use of the company’s email system during non-working hours. The Board emphasized that workplace email has become an important way for employees to communicate with each other and is a “natural gathering place” for employee discussions about working conditions. Accordingly, “employees who have rightful access to their employer’s email in the course of their work have a right to use the email system to engage in Section 7–protected communications on nonworking time.”

The NLRB placed several limitations on its decision. First, it applies only to employees who already have access to company email—employers do not need to provide email accounts to all employees. Second, employers may establish policies that limit or prohibit use of non-work email in certain circumstances, such as for technological reasons or to maintain production or discipline standards. The NLRB noted, however, that “it will be the rare case where special circumstances justify a total ban on non-work email use by employees.” Third, the NLRB reiterated that employers are not “ordinarily prevented from notifying its employees, as many employers also already do, 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 the use of their employer’s email system.”

Practical Tips

The Purple Communications decision is retroactive. That means many employer policies related to email use may be unlawful.

The key to compliance with the decision is to ensure employees who have already been granted access to an employer’s e-mail system for work purposes generally are not prohibited from using the e-mail system to engage in Section 7-protected communications about their terms and conditions of employment during non-working time. The Board’s position in Purple Communications appears to be that “consistent” treatment of Section 7 and non-Section 7 communications is no longer enough.

Employers may still restrict personal use of email during work time if it interferes with employees’ job duties.

Also, employers should notify employees that they reserve the right to monitor all email communications on their systems, and that employees have no right to privacy while using company email systems.

Along those lines, employers should keep in mind that the Purple Communications decision will aid in union organizing by permitting employee use of the email systems for personal/union communications. Employers should not increase email monitoring activity in response to suspected or actual union activity.

Employers should pay close attention to the future developments in this area. The Board hinted that it may extend the Purple Communicationsdecision to other forms of electronic communication in the future.

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