NLRB: Employees May Use Employer Email for Non-Business Purposes, Including Union Organizing

On December 11, 2014, the National Labor Relations Board (“NLRB”) ruled that employees who have access to their employer’s email systems may use company email to communicate with each other for non-business purposes during non-working time. The decision, Purple Communications, represents a major policy shift for the NLRB. It overturns its earlier decision in Register Guard which had held that employees had no statutory right to use their employer’s email systems.

The Decision

At issue in Purple Communications was an employer policy that limited employees’ use of the employer’s email to “business purposes only.” Employees were barred from using their employer’s email systems for “engaging in activities on behalf of organizations or persons with no professional or business affiliations” with Purple Communications, and employees were further prohibited from “[s]ending uninvited email of a personal nature.”

Communications of Workers of America (“CWA”) filed an unfair labor practice charge which challenged the policy. CWA claimed the policy substantially interfered with employees’ exercise of their rights under Section 7 of the National Labor Relations Act (“Act”). Section 7 grants non-supervisory employees the “right to … engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Specifically, CWA claimed that the decision in Register Guard was incorrect in “balancing employees’ Section 7 rights against the employer’s property interests, rather than its managerial interests.” CWA claimed that employees’ right to use email “should be limited only as required by management interests in production and discipline.”

The NLRB agreed, finding that Register Guard “undervalued employee’s core Section 7 right to communicate in the workplace about their terms and conditions of employment,” and gave “too much weight to employer’s property rights.” The NLRB further found that Register Guard “inexplicably failed to perceive the importance of email as a means by which employees engage in protected communications ….” The NLRB reasoned that in “many workplaces, email has effectively become a natural gathering place” for employees to communicate about terms and conditions of employment. The decision further found that Register Guard was a failure by the NLRB to adapt the Act to the “changing patterns of industrial life.” Explaining its new framework for evaluating employees’ rights to use employer email systems, the NLRB said:

We adopt a presumption that employees who have been given access to the employer’s email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on non-working time, absent a showing by the employer of special circumstances that justify specific restrictions.

An employer may rebut this presumption by demonstrating that special circumstances are necessary to maintain production and that discipline justifies restricting employees’ rights, however, the restrictions should be no greater than that necessary to protect the employer’s interests. The NLRB cautioned that it will be a rare case where “special circumstances justify a total ban on non-work email use by employees.”

Key Points

The NLRB noted that its decision was “a limited one” to be applied in the following manner:

  • Emails Only – The decision is limited to email systems only and does not, for now, apply to other electronic communication systems. Thus, an employer may still limit the use of its internet access; presumably even for Section 7 activity.
  • Employees Only – The decision does not extend rights to non-employees. Non-employees do not have rights to access an employer’s email system, that is, to communicate with employees through it.
  • Non-working Time Only – Employees’ rights to communicate with each other for non-business purposes are limited to non-working time. We assume that this would include the non-working time of both the sender and the recipient of the emails. An employer may discipline an employee for sending or reading non-work-related emails during working time, provided, however, that the employer consistently enforces such a rule. As a practical matter, however, this will probably be enforceable only against the sender of email and not the reader who typically would not be aware of the contents of an email until opening it and reading it.
  • Prior Access – The decision applies to employees who have been given access to the employer’s email system. An employer need not grant employees access to its email system where it has not chosen to do so.
  • Uniform Rules are Permitted – Employers may establish uniform and consistently enforced restrictions, such as prohibiting large attachments or audio/video segments, if they can demonstrate that such items would interfere with the email system’s efficient functioning. An employer may still bar the use of its email system for any non-Section 7 protected communications.
  • Surveillance is Permitted – Employers may still monitor their computers and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for purposes of harassment or other conduct that could give rise to employer liability. Employer monitoring will be lawful so long as the employer does not increase its monitoring during a union organizing campaign or focus its monitoring efforts on protected conduct or union activists.

What Employers Should Do

The Purple Communications decision has important ramifications for both unionized and non-unionized workforces. It is important to note that the decision is not limited to union activity only. It also extends to non-supervisory employee communications concerning company terms of employment, including policies and practices, and really anything relating to employees’ working conditions and interests. Accordingly, employers should carefully review their policies and procedures addressing employees’ use of their email systems.

For More Information

If you have any questions regarding this Client Alert, please contact Joseph P. Hofmann at 717.399.6643 or the Stevens & Lee attorney with whom you normally consult for labor and employment issues.

This News Alert has been prepared for informational purposes only and should not be construed as, and does not constitute, legal advice on any specific matter. For more information, please see the disclaimer.