NLRB Establishes new Right for Employees To Use Company Email During Non-Working Time: Is The Obama Board Out Of Control?

On December 11, 2014, a sharply divided National Labor Relations Board (NLRB) ruled in a 3-to-2 decision that employees with access to employer email systems “in the course of their work” must, in most cases, be allowed to use that email to communicate with one another about any and all workplace issues during non-working time. Purple Communications, Inc. 361 NLRB No. 126 (2014). The decision was issued shortly before the end of Board Member Nancy J. Schiffer’s term and overruled its 2007 decision in Register Guard. Unfortunately for employers, the decision leaves many important questions unanswered and places companies squarely in the crosshairs of another NLRB regulatory quagmire. The effect of the Board’s Purple Communications decision is to make it far easier for employees to engage in union activity at work and significantly limits an employer’s right to control its property and equipment.

The Facts

Purple Communications employs video relay interpreters to provide two-way interpretations of telephone communications between deaf or hard-of-hearing individuals and hearing individuals. The interpreters at issue worked at 16 call centers, which operated on a 24/7 basis. Purple Communications established a policy prohibiting employees from using its email system except for “business purposes.” During a union organizing campaign, the Communications Workers of America filed an unfair labor practice charge with the NLRB challenging the policy. The union did not claim that Purple Communications disciplined or discharged any employee in connection with the policy. Rather, the basis of the charge was that the policy was unlawful on its face.

The NLRB’s Decision

A three-member panel of the NLRB, Chairman Pearce and Members Hirozawa and Schiffer, concluded that Purple Communications’s email policy violated Section 8(a)(1) of the National Labor Relations Act. Based upon its conclusion that employee use of employer email is dramatically increasing and that email is the electronic equivalent of a “natural gathering place,” the Board created a new analytical framework for workplace email use by employees. The starting point in the Board’s framework is a presumption “that employees who have rightful access to their employer’s email system 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 Board’s analysis yielded the following conclusions:

• First, any employee who has been granted access to an employer’s email system “in the course of their work” cannot normally be restricted from using that email to communicate with coworkers regarding workplace concerns during non-working time.

• Second, employers can justify a blanket ban on nonwork time use of email only by demonstrating that “special circumstances make the ban necessary to maintain production or discipline.” Employers cannot take much solace from this statement. The Board majority observed that it would “be the rare case where special circumstances justify a total ban on nonwork email use by employees.” In order to make use of this concededly narrow exception, employers must “demonstrate the connection between the interest it asserts and the restriction.”

• Third, absent legally sufficient justification for a total ban on nonwork time email use, the Board’s decision permits employers to apply uniform and consistently enforced controls over its email system “to the extent such controls are necessary to maintain production and discipline.” The Board provides no guidance clarifying this issue which necessarily means that the permissible limitations on employee use of email will be hammered out in future unfair labor practice litigation. At first blush, however, it appears employers may still prohibit employee use of email during work time but only if that limitation is enforced consistently (similar to the rule applicable to solicitation generally).

• Finally, the Purple Communications decision recognizes that employers that do not permit non-work related email use by employees during work time “will have concerns about the extent to which they may monitor employees’ email use to enforce that restriction.” According to the Board, allegations of unlawful employer surveillance of email will be assessed using the same standards as non-email surveillance. That is, employers may monitor email use provided such monitoring is in place before a union campaign and does not specifically target union or employee protected activity.

• Lastly, the decision does not purport to address email access by nonemployees such as union organizers or other third parties and it does not resolve these issues related to any other type of electronic communications system other than employer email.

Unanswered Questions

While the NLRB’s Purple Communications decision will likely be challenged in the federal appellate courts and perhaps even at the Supreme Court of the United States, this is now the rule that the NLRB will enforce. Unfortunately, the majority left a host of important questions unanswered. Some of these are:

• What constitutes “special circumstances” sufficient to permit employers to ban nonwork time email use?
• What did the majority mean when it said email access must be provided to the employees “in the course of their work?” Does use of email need to be an integral part of an employee’s job?
• How can employers limit the use of third-party email when an employee copies a non-employee or union organizer on a communication and the third party uses “Reply All” to respond?
• In response to this decision, may employers restructure operations to eliminate email access for employees who currently enjoy such access?
• What types of email monitoring will be permitted and which will be deemed unlawful?

Impact of the Decision

On its face, the decision in Purple Communications is a major development in labor-management relations and creates a host of potential liabilities for employers. Regardless of whether the decision stands under appellate review, employers that have adopted a business-use-only policy for their email systems must consider rescinding or modifying that rule. It is expected that unions will likely file a wave of new unfair labor practice charges challenging employers’ existing email policies that contain a business-use-only restriction. Likewise, employers that provide employees with email access at work but that do not permit employee email use during a representation campaign can expect to have the results of the election challenged by the union and overturned by the Board.

The many unanswered questions will no doubt fuel litigation over, for example, the “special circumstances” required to prohibit nonwork time email use, employer monitoring of email content, and discipline of employees for improper email use, among other issues. The Board has now opened the door to mass solicitation of union authorization cards through a single email to employees at a worksite. These and other issues will no doubt have employers up nights considering ways to navigate the NLRB’s email minefield.

Ogletree Deakins’ Traditional Labor Relations Practice Group will be conducting a webinar on the effects of the Purple Communications decision on December 17, 2014. Stay tuned for further information.