Articles / 01.22.2015

NLRB Makes Employer E-Mail Available for Union Activity

Authored by: Robert J. Bowes

In what many are calling a continuation of the erosion of employers’ property rights, on December 10, 2014, the National Labor Relations Board (the “Board”, NLRB) held in Purple Communications, Inc. (361 N.L.R.B. No. 126) that, under the National Labor Relations Act (the “NLRA”), employees have a right to use their employer’s e-mail system to perform activities protected under Section 7 of the NLRA during non-work time. In so doing, the Board overruled seven (7) years of precedent that precluded employees from using their employer’s e-mail services for personal, protected activities.

Section 7 of the NLRA ensures that employees are allowed to perform collective bargaining and other protected labor activities, which include, but are not limited to, discussing union-related issues, performing collective bargaining, and discussing terms and conditions of employment.

It is common for employers to have an outright ban – via an electronic communications policy – on an employee’s incidental, personal usage of the employer’s e-mail system, which would include usage for Section 7 activities. Such was the case in Purple Communications. The employer, a sign-language interpretation service, had an electronic communications policy that completely banned personal use of its e-mail system. Specifically, the policy included a ban on using the system for “activities on behalf of organizations or persons with no professional or business affiliation with the Company.”

At issue in Purple Communications was whether it was lawful under the NLRA for the employer to preclude employees from using its e-mail system to perform Section 7 activities during non-working time. The Board said no. It found that employees who have been provided access to their employer’s e-mail system are presumed, under the NLRA, to be allowed to use the system for Section 7 purposes even during non-work time, unless the employer can show special circumstances justifying the outright ban, including the need to maintain production or discipline in the workplace. In so finding, the Board emphasized the essential nature—now and in the future—of e-mail as a form of workplace communication and the chilling effect that an outright ban would have on the available means for employees’ Section 7 communications. In drawing this conclusion, the Board distinguished e-mail systems from other forms of communications equipment, like telephone systems. It concluded that, compared to traditional communications equipment, personal e-mail usage is generally tolerated by employers, is less invasive to the resources of employers, and is a more important means for workplace communication, and thus, should be protected under the NLRA.

The Board made clear that its decision was limited only to communications by e-mail and to those employees who had already been granted access to an employer’s e-mail system. Thus, the Board emphasized that the decision should not be read to address any other form of electronic communication, or to require that employers grant employees access to e-mail systems if they did not already have it.
In the wake of Purple Communications, employers should evaluate their electronic communications policies and ensure that they meet this new standard – if an employer allows incidental personal use of its e-mail system during non-work time, it must also allow employees to use the system for Section 7 (union) activities. Further, if an employer has an outright ban on personal use of its e-mail system during non-work time, it must allow the system to be used for Section 7 activities unless it can show special circumstances, including the necessity for discipline or production in the workplace. Though it is not yet fully clear how the Board’s decision in Purple Communications will affect other aspects of employers’ electronic communications policies, understanding the likely implications of the decision is essential to avoiding potential liability.