BY SUBHASH VISWANATHAN
On Dec. 11, the National Labor Relations
Board issued a 3-2 decision in Purple Communications
Inc., holding that employees have a
presumptive right to use their employer’s email
system during non-working time to communicate
regarding union organizing and to engage
in other protected concerted activities under
Section 7 of the National Labor Relations Act.
The board’s decision overruled a 2007
decision.
The ruling involved Purple Communications
in California. Its electronic communications
policy provided systems and equipment were
“to facilitate company business” and that “all
such equipment and access should be used for
business purposes only.”
The policy also prohibited employees from
using it to engage “in activities on behalf of
organizations or persons with no professional
or business affiliation with the company” and
from sending “uninvited email of a personal
nature.”
There was no dispute that, under the board’s
2007 decision, the policy was perfectly lawful
as written.
In the fall of 2012, the Communications
Workers of America filed petitions to represent
employees at seven of Purple Communications’
facilities. After an election was held, the union
filed objections to the results of the election
at two facilities and an unfair labor practice
charge, alleging (among other things) that the
electronic communications policy interfered
with the employees’ Section 7 rights.
An administrative law judge, relying on the
board’s 2007 decision, found the electronic
communications policy to be lawful. The board
majority, however, found that decision improperly
placed too much weight on the property
rights of employers in their own email systems
and too little weight on the Section 7 right of
employees to communicate in the workplace
about their terms and conditions of employment.
The majority also believed that the decision
failed to recognize the importance of email as a
means by which employees engage in protected
communications. Therefore, the majority overruled
and held that employees have a presumptive
right to use their employer’s email system
during non-working time to engage in communications
protected by Section 7 of the Act.
The NLRB made clear that this presumption
applies only to employees who have been
granted access to the employer’s email system
in the course of their work and does not require
an employer to provide access to its email system
to employees who do not otherwise need it.
In addition, the NLRB held that an employer
may rebut the presumption and justify a total
ban on non-business use of its e-mail system
by demonstrating that “special circumstances
make the ban necessary to maintain production
or discipline.”
Virtually no guidance is provided in the
decision regarding what those “special circumstances”
might be, but the board majority
stated that “we anticipate that it will be
the rare case where special circumstances
justify a total ban on non-work e-mail use by
employees.”
NLRB remanded the case back to the administrative
law judge for a determination of
whether Purple Communications could successfully
rebut the presumption and justify
the scope of its prohibition on the personal
use of email.
The restriction that employees may use
their employer’s email system for Section 7
purposes only during non-working time raises
a significant question: Can an employer monitor
employee use of its e-mail systems during
working time to ensure compliance with this
restriction and discipline employees who are
found to have engaged in Section 7 activity
through e-mail during working time, without
risking potential liability for unlawful surveillance
or discrimination based on union
activities?
According to the NLRB decision, an employer
may continue to notify employees that
they should have no expectation of privacy in
their use of the employer’s e-mail system and
may continue to monitor the use of its email
system for legitimate business purposes. However, the board stated that this monitoring is
lawful only if “the employer does nothing out
of the ordinary.”
For example, the decision leaves open the
possibility that an employer’s increased monitoring
during a union organizing campaign or
an employer’s particular focus on employees
who are known union activists could result in
potential liability under Sections 8(a)(1) or
8(a)(3) of the Act.
In the view of the dissenting NLRB voters,
an employer’s interests in controlling the use
of its own electronic communications system
should prevail over employees’ interests in using
that system for union organizing activities,
especially in light of the availability of other
electronic communications networks such
as employees’ own personal email and social
media sites.
Many employers’ electronic communications
policies already permit employees to
engage in some limited personal use of email
systems as long as that personal use does not
interfere with the employee’s work duties or
the work duties of other employees.
This type of policy may very well be lawful
even under the Purple Communications decision,
because, on its face, it likely would not
be interpreted to prohibit Section 7 protected
activity during non-working time. At this point,
however, if your electronic communications
policy contains a blanket prohibition on the
use of your email system for personal reasons,
you may want to consider potential revisions.
Viswanathan is a labor and employment law
attorney with Bond, Schoeneck & King.
Photo Courtesy Bond Schoeneck & King