On December 11, 2014, the National Labor Relations Board (the “NLRB”) issued the long-awaited decision regarding employee use of company email in Purple Communications, Inc. The NLRB held that employee use of email for protected communications during non-working time is presumptively an employee right for any employee provided access to a company’s email systems.
The NLRB’s 3-2 decision overruled the NLRB’s previous 2007 decision in Register Guard. In the Register Guard decision, the NLRB held that an employer may completely prohibit employees from using the employer’s email system for communications related to union activity or protected concerted activity (Section 7 rights) so long as the employer’s ban is not applied discriminatorily. The National Labor Relations Act grants employees the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, such as communicating with other employees about union organizing.
Now, the NLRB has decided that it is presumed that employees who have access to their employer’s email system have a right to use the email system to engage in Section 7-protected communications on non-working time. The Board did not completely shut the door for employers to regulate email. However, an employer may rebut the presumption by demonstrating that “special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.” That appears to be something of an illusion, though, since the Board stated that it anticipated that it would be the “rare case” where special circumstances justify a total ban on non-work email use by employees. The Board also emphasized that the “mere assertion of an interest that could theoretically support a restriction will not suffice” and that employers must demonstrate a connection between the interest it asserts and the restriction.
Other than recognizing in a footnote that an employer’s interests in protecting its email system “from damage or from overloads due to excessive use, would of course be relevant”, the Board did not elaborate on what the “special circumstances” may be that would justify restrictions on email. This will undoubtedly cause a headache for employers when looking to adopt restrictive email policies. While it is uncertain as to what these “special circumstances”, if there ever could be any, are that would allow an employer to restrict its employees’ email use, the limitations of this decision are certain:
- This decision is limited to only email systems and does not apply to any other electronic communications systems.
- The decision is limited to email use by employees only. The Board did not find that nonemployees have rights to access an employer’s email system.
- The decision does not require an employer to grant employees access to its email system where it has not chosen to do so.
- The presumption that employees with access to email have a right to use that email for Section 7-protected communications is limited to nonworking time.
- Employers are not prohibited from restricting employee use of email if the employer can show that special circumstances make the presumption described above inappropriate in its workplace.
- Employers are not prohibited from establishing uniform and consistently enforced restrictions, such as prohibiting large attachments or audio/video segments, if the employer can demonstrate that they would interfere with the email system’s efficient functioning.
- Employers are not prohibited from monitoring 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.
The decision equally leaves open many uncertainties, with more expected as the cases develop in this area. For instance, the decision fails to answer the following questions:
- How is the line drawn between working and non-working time?
- Which employee’s “time” is it? Is it the sender’s time or the receiver’s time? What happens when an employee on a break emails another employee who is not on a break?
- How are emails from a private source to a company email to be treated?
- May employees forward emails to coworkers from third parties?
- How are emails with attachments to be treated (e.g. attached union cards)?
- Are employers allowed to implement restrictions based on the quantity of emails? Are employers required to allow 100 emails in a day?
- May employers still limit employees’ personal use of email systems?
This decision illustrates the Board’s current agenda, which is to expand employee rights. Employers should review their employee handbooks and communication policies to determine whether their current policies restrict employee use of email systems. Employers should be cautious in adopting any ban on nonbusiness-related emails. We will continue to monitor these cases and provide updates as cases interpreting this decision develop.