NLRB Rules that Employees May Use Employers’ E-mail for Union Organization

The National Labor Relations Board has ruled that employee use of email for statutorily protected communications during nonworking time, including discussions concerning union organization, must “presumptively” be permitted by employers who have chosen to give employees access to their email systems. In so holding, the Board overruled its 2007 Register Guard decision, which had stated that employers can prohibit all non-business use of their email systems, including for communications protected by the National Labor Relations Act.
Furthermore, and of significant importance, the NLRB announced today that it has adopted a Final Rule, which significantly revises its representation-case procedures. The rule will be published on December 15, 2014, and will take effect on April 14, 2015. We will be distributing an email next week discussing the new rule. For more, click here.
Facts of the Case: In Purple Communications, the Company maintained an electronic communications policy in its handbook. The policy, which was fully compliant with the Board’s Register Guard rule, stated in pertinent part:
Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other Company equipment in connection with any of the following activities:
1. Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company.
2. Sending uninvited email of a personal nature
In 2012, there was an attempt to unionize the Company and union representation elections were held. In the course of the election proceedings, the union argued that the Company’s electronic communications policy violated employees’ rights under Section 7 of the National Labor Relations Act to communicate with one another at work about union organization and other terms and conditions of employment. The union filed an unfair labor practice charge regarding the policy. In ruling on the ULP charge, the Administrative Law Judge applied Register Guard to hold that the employer’s policy was lawful and the employer did not have to permit its employees to use its email systems for union organizing purposes.
The Board’s Decision. The Board reversed the ALJ’s decision and, in doing so, expressly overruled its 2007 Register-Guard ruling. The Board stated that, “By focusing too much on employers’ property rights and too little on the importance of email as a means of workplace communication, the Board failed to adequately protect employees’ rights under the Act” and that it had failed to adapt to changing technologies in the workplace.
Under the new email rule articulated by the Board in Purple Communications, which it characterized as “carefully limited,” an employer is not required to provide employee access to its email system, but if it chooses to do, then all employees with such access are presumptively permitted to use the email system during nonworking time for protected communications. An employer may overcome the presumption and impose a ban on nonwork use of email by demonstrating that special circumstances make the ban necessary to maintain production or discipline. Where a total ban is not justified, an employer may impose “uniform and consistently enforced controls” over the use of the email system, such as restrictions on large attachments or audio/video segments that demonstrably interfere with the system’s effective functioning.
The Board acknowledged that employers may “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.” However, such monitoring would be unlawful if the employer targeted union-related communications, such as by “increasing its monitoring during an organizational campaign or focusing its monitoring efforts on protected conduct or union activists.”
The Board also noted that, in the Purple Communications decision, it was not addressing other forms of electronic communication, such as instant messaging, texting, or communication through the employer’s social media accounts, although it acknowledged that such communications may be subject to a similar analysis. The Board further stated it did not find that nonemployees had any rights to use an employer’s email system.
Lessons Learned. Following Register Guard, many employers implemented a “business-use only” policy with regard to Company email systems. Under Purple Communications, these policies are no longer lawful. We expect that this decision will be appealed to federal court, but in the meantime, employees who have been authorized to use an employer’s email system will now be permitted to use the system for protected communications, such as union organizing emails, during nonworking time. It is also likely that employees would be permitted to use other forms of Company-provided electronic communications, such as instant messaging and texting, for these purposes.
Employers may monitor employee use of their email systems, which would include review of such protected communications, as long as the Company not target those communications for monitoring. Before engaging in any such monitoring, however, an employer should inform employees through a written policy that the Company reserves the right to monitor use of its email system and that employees should have no expectation of privacy in their use of the system.