December 15, 2014
On December 11, 2014, the National Labor Relations Board (NLRB) ruled that employees have rights to use employer email systems during their non-working time for activity protected by Section 7 of the National Labor Relations Act (the “Act”). Purple Communications, Inc., 361 NLRB No. 126. That Section 7 protected activity might include interacting with employees or others about organizing a union or other union business. The protected activity might also encompass a variety of scenarios for “concerted activity,” in which employees communicate about wages, hours, and working conditions.
The NLRB panel had solicited amicus briefs before ruling in the case. In Purple Communications, the question involved the legality of a policy which restricted employee use of the employer’s email system. The NLRB ruling sends the case back to the trial judge to assess the situation under a new legal standard.
The ruling was a split decision, with the Board’s three Democratic Party members ruling in the majority and the two Republican Party members writing separately in dissent.
In overruling a controversial 2007 NLRB ruling involving Oregon newspaper Register-Guard, the NLRB panel in Purple Communications spoke of a changing working environment in which communications are increasingly dependent on email. The panel referred back to U.S. Supreme Court precedent on workplace access and the balancing of rights between employer and employees. In doing so, the Board acknowledged a balance of interests between employee rights to communicate and the rights of employers to do business without disruption.
Largely disregarding the employer property interests which led the Board in the Register-Guard ruling to limit employee rights on employer networks, the Purple Communications ruling confirms, “[W]e will presume 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. An employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights. Because limitations on employee communication should be no more restrictive than necessary to protect the employer’s interests, we anticipate that it will be the rare case where special circumstances justify a total ban on nonwork email use by employees. In more typical cases, where special circumstances do not justify a total ban, employers may nonetheless apply uniform and consistently enforced controls over their email systems to the extent that such controls are necessary to maintain production and discipline.”
In limiting this expansion of employee rights to nonworking time, the Board acknowledged that employers have an interest in regulating non-work related email traffic during the time work is to be performed. The Board majority stated, “Our decision does not prevent employers from continuing, as many already do, to 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.”
Moreover, on the monitoring of computer use, the ruling provides, “The Board has long held that management officials may observe public union activity without violating the Act so long as those officials do not do something out of the ordinary. An employer’s monitoring of electronic communications on its email system will similarly be lawful so long as the employer does nothing out of the ordinary, such as increasing its monitoring during an organizational campaign or focusing its monitoring efforts on protected conduct or union activists. Nor is an employer ordinarily prevented from notifying its employees, as many employers do already, 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 their use of the employer’s email system.”
The dissenting opinions foresee difficulty for employers in living by the new legal standards. Each dissent argued in favor of maintaining the Register-Guard standard. Arguments in dissent suggest a lack of clarity in the majority’s analysis in:
• defining employee rights versus employer property rights;
• an infringement on the electronic property rights in an IT system created by an employer for business purposes;
• an unwarranted presumption that employees need email rather than alternative means to communicate on matters protected by the Act;
• an infringement on working time by allowing non-working time emails that will inevitably be read and responded to during working time; and
• the likelihood that an innocent employer’s effort to manage lawful use of an email system or investigation of workplace issues may generate legal disputes over alleged surveillance and intrusion upon employee rights.
It should be expected that there will be further clarification of the legal standard announced as litigation continues in the Purple Communications case. Also, it is likely that NLRB headquarters will issue guidance on how the ruling will be interpreted and enforced by the Agency.
Also, given the aggressive enforcement posture taken by NLRB in recent years, the likelihood is high that employees and labor unions will file charges to test the boundaries of this new analysis and the scope of protected employee rights.
Employers should consider the Purple Communications ruling a call to review email and computer use policies and the consistency of enforcement. As with other matters involving workplace policies and the NLRB, it is typically safest to review and revise policies and practices before an issue of protected activity or a union organizing campaign begins.