In a landmark 3-2 decision, the National Labor Relations Board (“NLRB” or “Board”) reversed its own precedent and found that employees now have a presumptive right to use their employer’s email system to engage in communications relating to concerted activity protected by Section 7 of the National Labor Relations Act—including union organizing—during nonworking time. Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014). According to the Board, an employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting employee rights, although the Board stated that these exceptions will be “rare.” The ruling is the latest pro-union decision from the Board, and carries significant consequences for employers everywhere because of the importance of workplace email and the prevalence of policies restricting the use of business email for nonwork purposes.

The NLRB previously held in Register Guard, 351 NLRB 1110 (2007), that an employer may prohibit nonwork-related use of its email system, so long as the employer does not discriminate against concerted activity. In Purple Communications, the Board considered a policy that was lawful under Register Guard and prohibited employees from using “the computer, internet, voicemail, and email systems . . . in connection with . . . activities on behalf of organizations or persons with no professional or business affiliation with the Company” or from “sending uninvited email of a personal nature.” The Board overruled Register Guard and found that the employer’s policy was illegal under the National Labor Relations Act. In doing so, the Board primarily relied on an almost 70-year-old Supreme Court case, Republic Aviation, 324 U.S. 793 (1945), which found that employees had a right to solicit one another for Section 7 purposes (including union organizing) on nonworking time, absent special circumstances. The Board found that this same rule applied to employer email systems, so that employees can presumptively use email for Section 7 purposes on nonworking time, “absent a particularized showing of special circumstances regarding the employer’s need to maintain production and discipline.”

The Board emphasized that the special circumstances exception to justify a complete ban on nonwork email use “will be the rare case.” The Board did find that employers are still free to implement and enforce uniform and consistent controls, “such as prohibiting large attachments or audio/video segments, if the employer can demonstrate they would interfere with the email system’s efficient functioning.”

In its decision, the Board also distinguished a long line of cases that previously had found that employees did not have a Section 7 right to use employer property such as bulletin boards, telephones, fax and copy machines, and public address systems. The Board held that “employee email use will rarely interfere with others’ use of the email system or add significant incremental usage costs” and that “email systems function as an ongoing and interactive means of employee communication in a way that other, older types of equipment clearly cannot.” More ominously, the Board refashioned the “broad pronouncements” in those cases as nonbinding dicta, and stated that the reasoning which prohibited employee use of the telephone system was also “unpersuasive,” though the Board left that issue for another day.

The most vexing issue for employers going forward, as pointed out by NLRB member Philip A. Miscimarra’s dissent, is likely differentiating between “working” and “nonworking” time for sending emails. After all, due to the very nature of email, employees frequently intertwine nonbusiness emails about sports, shopping, and family life with work emails to colleagues. Drawing the line between the two is challenging and far different from the types of nonworking-time solicitations in Republic Aviation, which usually take place in a defined area like an employee break room or cafeteria. The very notion that “working time is for work” appears to be under attack by the Board’s ruling.

Employers should immediately review their employee handbooks and policies for rules that are inconsistent with the NLRB’s decision. The NLRB has long held that the mere promulgation of an unlawful work rule violates the NLRA, even if the rule is never enforced against an employee. Indeed, in Purple Communications there was no allegation that the work rule in question was used to discipline an employee. Instead, the case originated in connection with a union’s objections to an unsuccessful election.

Purple Communications again demonstrates the Board’s aggressive pro-labor agenda. As a result of this decision, employers can expect union organizers to encourage employees to send work emails advocating for labor unions and then file unfair labor practice charges with the NLRB if the employer disciplines the employee for doing so, even if the employer believes that the email was sent on working time. Employer policies previously lawful under Register Guard also will be the subject of charges from the Board. As a result, it is critical that employers work closely with their labor counsel to develop appropriate policies consistent with the new rule and implement a proactive labor relations approach that prevents unnecessary NLRB litigation.

If you have any questions about this alert or how it may impact your business, please contact any member of BakerHostetler’s Labor Relations team.

Authorship Credit: Bryan M. O’Keefe

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