National Labor Relations Board Overrules Register Guard and Recognizes Employees' Right to Use Employer's Email for Section 7 Activity

A recent National Labor Relations Board (NLRB) decision that reverses prior law should cause all employers to review and evaluate their email system policies. In Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014), the NLRB held that employees are generally entitled to use their employers' email systems for Section 7-protected activities on nonworking time. This decision, which applies retroactively, overruled the NLRB’s prior decision in Register Guard, where the NLRB had determined that employers lawfully could restrict employees' use of email systems to business matters.

In Purple Communications, the employer maintained an electronic communications policy that limited employees’ use of email and other electronic devices to “business purposes only.” The policy specifically prohibited employees from using email or other company systems “in connection with … any activities on behalf of organizations or persons with no professional or business affiliation with the Company,” and the distribution of “uninvited emails of a personal nature.” The union challenged the policy on the grounds that it interfered with the employees’ rights under Section 7 of the National Labor Relations Act, which provides employees with the right to act together to try to improve their working conditions during non-working times and in non-working areas and includes the right to communicate for union organizing purposes.

The NLRB initially cited statistics showing that email has become a new “natural gathering place, and a forum in which coworkers who share common interests will seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.” Based on this information, the NLRB considered employees’ use of email to be the present-day equivalent of face-to-face communication and held that the same standard should apply to both types of interactions.

Accordingly, the NLRB ruled that “employees who have rightful access to their employer’s email system in the course of their work [are presumed to have] a right to use the email system to engage in Section 7-protected communications on nonworking time.” An employer may rebut this presumption “by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights,” provided the employer can also “demonstrate the connection between the interest it asserts and the restriction.” Even then, however, “an employer’s interests will establish special circumstances only to the extent that those interests are not similarly affected by employee email use that the employer has authorized.”

Notably, the Purple Communications decision does not apply to:

Employees who have not previously been given access to their employer’s email system;
Non-employees; or
Employer equipment other than email; issues involving these circumstances remain open, at least for the time being.

The Purple Communications decision is significant for employers because it dramatically alters the way the NLRB will evaluate email policies. Consequently, employers should revisit their email policies to determine whether they restrict personal use during nonworking time. If they do, then the NLRB likely would find that the policy is unlawful unless the employer can demonstrate special circumstances. In that case, the employer should consider:

Revising the policy to permit reasonable personal use during working and nonworking times or
Determining whether it can demonstrate the required special circumstances needed to uphold the restrictions on personal use.