NLRB Reverses Precedent and Allows Use of Employer Email for Non-business Purposes

Nicholas Fortuna, December 23, 2014

On December 10, 2014, in the matter of Purple Communications, Inc. a divided National Labor Relations Board held that workers have a statutory right to use an employer’s email system to engage in discussions about the terms and conditions of their employment (National Labor Relations Act, Section 7 rights) while on nonworking time. Section 7 of the NLRA grants employees the right to communicate about the terms and conditions of employment for the purpose of “collective bargaining or other mutual aid or protection.” In Purple Communications, Inc., the Board found that an employer who has granted access to its email system for work purposes must allow access for Section 7 purposes as well.

The Board did recognize that there may be special circumstances that justify specific restrictions on the use of the employer’s email system to discuss terms and conditions of employment. However, the burden is on the employer to demonstrate the need for such restrictions. The employer asserting special circumstances must articulate the interest at issue and how the interest supports the email use restriction it has implemented.

Purple Communications provides sign language interpretation services for hearing-impaired individuals. Its employees, known as video relay interpreters, provide two-way, real-time interpretation of telephone communications between hard-of-hearing and hearing individuals. The interpreters typically use an audio headset to communicate orally with the hearing participant on a call, leaving their hands free to communicate in sign language, via video, with the hearing-impaired participant.

In 2012, the Communications Workers of America (CWA) filed petitions for elections at Purple’s facilities in Long Beach and Corona, California. The CWA lost both elections, but filed objections with the Board. The CWA also filed unfair labor practice charges against Purple related to certain provisions in its employee handbook.

The handbook limited the use of all company technology, including computers, laptops and e-mail, to business purposes only. The employees were specifically prohibited from “engaging in activities on behalf of organizations or persons with no professional or business affiliation with the company; and sending uninvited email of a personal nature.”

In response to the objections filed, the Board overturned its decision in the matter of Register Guard, in which it held that employees do not have a right to use their employer’s email systems (or other electronic communications systems) for Section 7 purposes. In Register Guard, the Board justified it decision by stating that the employer’s property interest in its email system gave it the right to ban use of its electronic communication systems for non-work purposes.

In reaching its current decision, the Board called the majority’s analysis in Register Guard “incorrect,” noting that it undervalued the significance of communication as the cornerstone of Section 7 rights while placing undue emphasis on employers’ property rights.  It also denounced the Register Guard majority’s failure to recognize e-mail as an increasingly “critical” mode of communication in the workplace, stating that the modern-day pervasiveness of e-mail has rendered it a natural (albeit virtual) “gathering place” for employees to communicate with one another, including about the terms and conditions of their employment.

The Board’s decision, however, does not stop employers from continuing, as many 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. In general, management officials may observe employees’ exercise of Section 7 rights so long as those officials do not do something out of the ordinary, such as increase monitoring during an organizational campaign or focus monitoring on protected conduct or union activists.

The Board’s decision does not prevent the employer from establishing uniform consistently enforced restrictions, such as prohibiting large attachments or audio/video segments, if the employer can demonstrate that they would interfere with the emails system’s efficient functioning.

The decision in Purple Communications, Inc., together with other recent decisions, signals the NLRB’s increasing willingness to make it easier for employees to organize under the NLRA. Employers should reexamine their email and technology policies in light of this decision.