On December 11, 2014, the National Labor Relations Board ("Board") reversed its prior position and held that employee use of e-mail for activities directed to terms and conditions of employment must presumptively be permitted by employers who have given employees access to their e-mail systems. The Board's decision in Purple Communications, Inc., 361 NLRB No. 126 (2014) means that employees have the legal right to use company e-mail for non-business related reasons, including union organizing and other activity directed against the employer, and will require most employers to revise their electronic communications policies.
The Purple Communications decision is troublesome for employers because in the modern workplace, it is absolutely essential for employers to provide employees with access to e-mail systems for business-related purposes. Not only do employees utilize e-mail to communicate with third parties on behalf of the employer, but e-mail is increasingly the preferred method for internal dialogue, largely replacing bulletin boards, handouts, phone calls and in-person meetings. But previously, in Register Guard, 351 NLRB 1110 (2007), the Board had held that an employer may completely prohibit employees from using the employer's e-mail system for non-business purposes, so long as the ban is not applied discriminatorily. The Board reasoned that e-mail systems are the equivalent of other employer-provided communications equipment, and employers are permitted to ban non-work use of such equipment by employees. Therefore, absent discriminatory application of the workplace rule, employees had no right to use e-mail for organizing and other purposes directed to terms and conditions of employment.
In Purple Communications, the Board decided that the Register Guard analysis was "clearly incorrect," because it focused too much on employer property rights and too little on the increasing importance of e-mail to workplace communication. Rather than analogizing e-mail to other equipment, the Purple Communications majority found it to be qualitatively different and more akin to a "natural gathering place" for employees on the employer's property. Because an employer may not ban discussions on its property during non-working time, an employer may likewise not ban conversations occurring through e-mail.
The employer in Purple Communications had provided e-mail accounts to its employees, but maintained a policy limiting use of e-mail to business purposes only. The Board found this policy to be unlawful and adopted a presumption that employees who have been given access to the employer's e-mail system in the course of their work are entitled to use the system to engage in discussions about terms and conditions of employment on non-working time, absent a showing of special circumstances that require broader restriction to maintain production or discipline.
The Board attempted to define its decision as "carefully limited" in two ways. First, the Board articulated that it only applies to employees who have already been granted access to e-mail systems in the course of their work, and employers are not required to grant access. Second, in "special circumstances," an employer may justify a total ban on non-work use of e-mail, even on non-working time, to maintain production or discipline.
It is clear, however, that neither of the above limitations provide much comfort to employers. It will be unusual for employees to not already have access to e-mail. Further, the Board specifically said that "it will be the rare case where special circumstances justify a total ban on non-work use of e-mail by employees." Rather, an employer will be permitted to merely apply uniform and consistently enforced controls over the e-mail system, such as prohibiting large attachments or audio/video segments, if such would interfere with the e-mail system's functioning.
In an answer to concerns raised over the implications of its decision, the Board stated that an employer will be permitted to monitor e-mail usage to ensure compliance with a business-use limitation for working time and that the e-mail system is not used for unlawful purposes. "An employer's monitoring of electronic communications on its e-mail system will similarly be lawful so long as the employer does nothing out of the ordinary, such as increasing monitoring during an organizational campaign, or focusing monitoring on union activists." Further, an employer may continue to notify employees that it monitors e-mail for management reasons, and that employees do not have an expectation of privacy in their use of the e-mail system.
The Board continues to increasingly govern the non-union workplace. As a result of this decision, most employers' electronic communications policies are unlawful under the National Labor Relations Act. Employers are urged to immediately update their handbooks and to revise their policies and procedures so as to come into compliance with the new Board standard.
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