By Laurie E. Meyer
On December 11, 2014, the National Labor Relations Board (“NLRB”), in a 3-2 decision, ruled that employees have a statutory right to use their employer’s email systems for purposes of engaging in “protected, concerted activity” as well as union organizing efforts. This decision Purple Communications, Inc. v. Communications Workers of America, AFL-CIO, 361 NLRB No. 126 (2014), overrules the Board’s own 2007 decision, where the Board found that email systems were the employer’s property and as such, employees could be prohibited from using the email system for non-business purposes pursuant to a properly enforced electronic communications policy.
NLRA Applies Even in Non-Unionized Workplaces
First a backdrop: Protections afforded to certain employees by the National Labor Relations Act (“NLRA”) apply in both union and non-union workplaces. Indeed, even where no collective bargaining agreement is in place and where no union organizing campaign is afoot, Section 7 of the NLRA grants “employees”—but not “supervisors,” as that term is defined in the Act—the right to “engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid and protection.” Stated very simply, this means that non-supervisory employees have the right to communicate with one another and with management about workplace issues, including the terms and conditions of their employment, and employers may not discipline such employees for such activity.
Board Rules That if Employees Are Granted Access to Employer-Provided Email, They Must Be Permitted to Use These Email Accounts, During Non-Working Time, for Section 7-Protected Communications
Until now, employees have not had a statutory right under the NLRA to use their employers’ email systems for union organizing or other Section 7 purposes. Register Guard, 351 NLRB 1110 (2007), enforced in relevant part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). Employers could implement electronic communications policies that prohibited employees from using their employer-provided email accounts for anything other than business-related purposes.
This was just the type of policy at issue in Purple Communications. In this case, the employer provides sign-language interpretation services. Its employees provide two-way, real-time interpretation of telephone communications between deaf or hard-of-hearing individuals and hearing individuals, and these employees were provided email access by the company. The employer’s electronic communications policy, contained in its employee handbook, stated, in relevant part:
INTERNET, INTRANET, VOICEMAIL AND ELECTRONIC COMMUNICATIONS POLICY
Computers, laptops, internet access, voicemail, electronic mail (email), Blackberry, cellular telephones and/or other Company equipment is provided and maintained by the [sic] Purple to facilitate Company business. All information and messages stored, sent, and received on these systems are the sole and exclusive property of the Company, regardless of the author or recipient. All such equipment and access should be used for business purposes only.
. . . .
Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other Company equipment in connection with any of the following activities:
. . . .
2. Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company.
. . . .
5. Sending uninvited email of a personal nature.
The Communications Workers of America (CWA), following an unsuccessful Board election, filed objections, alleging that the employer’s rule prohibiting employees from using its equipment for non-business purposes unlawfully interfered with employees’ rights. The NLRB’s General Counsel and the CWA argued that such limitations should be held unlawful because a rule that “prohibit[s] employees from using [the employer’s] equipment to engage in Section 7 activities such as organizing support for, or opposition to, a labor organization; or discussing, or attempting to discuss, workplace concerns with fellow workers” violates the NLRA. According to the General Counsel, technology has made “email … analogous to the water cooler” of years ago, around which employees would gather to talk about their personal and work issues.
The NLRB agreed. The Board found the workplace to be “uniquely appropriate” and a “natural gathering place” for Section 7-protected activities, and noted further that the use of email has “expanded dramatically” in recent years. The Board observed that according to a 2004 workplace survey conducted by the American Management Association, over 81 percent of employees spent an hour or more on email during a typical workday, and that 86 percent of employees had sent or received non-business-related email at work. Similarly, the Board noted that according to a 2008 survey, “96 percent of employees used the internet, email or mobile telephones to keep them connected to their jobs, even outside of their normal work hours.” Given the ubiquity of non-work related use of electronic communications systems provided by employers, the Board held that an employee’s use, during non-working time, of employer-provided email must be “presumptively permitted” by employers who have chosen to give employees access to their email systems.
The NLRB did attempt to “carefully limit” this otherwise broad decision: First, it stated that its decision applies only to employees who have already been granted access to the employer’s email system in the course of their work and does not require employers to provide such access. Second, the NLRB found that an employer may still justify a total ban on nonwork use of email, including Section 7 activities, by demonstrating that special circumstances make the ban necessary to maintain production or discipline. However, “absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.” Unfortunately, the Board gave virtually no guidance as to what will constitute such “special circumstances.”
The NLRB declined to address email access by third parties or other types of electronic communications systems, as they were not at issue in the case.
Interestingly, the Board acknowledged that “employers who choose to impose a working-time limitation will have concerns about the extent to which they may monitor employees’ email use to enforce that limitation.” Indeed, many employers’ electronic communication policies expressly warn employees that because these systems remain at all times the property of the employer, employees should understand that their communications may be monitored. The Board stated that management’s monitoring of its email system will be lawful “so long as the employer does nothing out of the ordinary, such as increasing its monitoring during an organizational campaign or focusing its monitoring efforts on protected conduct or union activists. Nor is an employer ordinarily prevented from notifying its employees, as many employers also do already, that it monitors (or reserves the right to monitor) computer and email use for legitimate management reasons and that employees may have no expectation of privacy in their use of the employer’s email system.”
The two dissenting Board members included opinions that are lengthy, passionate and detailed in their descriptions of all the ways they believe that the majority’s decision both constitutes an improper application of long-standing Board precedent and the law of property rights. According to both dissenters, the new “right” recognized by the majority is unnecessary given the many other avenues—both electronic and non-electronic—that employees have to communicate about workplace issues. It is further an impermissible intrusion on the property rights of employers. As dissenting Board member Miscimarra commented,
[T]he majority’s approach unreasonably fails to acknowledge that the right to control use of one’s own property is one of the most basic of all rights. In this regard, I believe the majority’s criticisms of Register Guard demonstrate an unreasonable indifference to employer property rights. Although longstanding Board law permits employers to restrict “equipment” to business purposes, the majority argues employers lack any comparable property right in computer-based email systems because they can support a larger number of simultaneous users. Therefore, my colleagues state that “[e]mployee email use will rarely interfere with others’ use of the email system or add significant incremental usage costs.” In my opinion, this rationale only makes sense from the perspective of someone who misunderstands the nature of property rights or is determined to disregard them. An owner of property is normally entitled to permit its use while imposing conditions or restrictions, based on the mere fact that he or she is the owner.
Further, both dissenters spend many pages detailing how the Board’s new standard will lead to “significant, unintended problems for employees, employers, unions and the Board,” and “will make it all but impossible to determine whether or what communications violate lawful restrictions against solicitation during working time.” According to the dissenters, these difficulties will be most keenly felt by employers when trying to enforce “non-working time” restrictions on non-business related activity, and include:
- Most, if not all employee access to the email system will occur during their working time. Most non-supervisory employees are non-exempt from overtime, and, as a consequence, are not given access to email outside of work time.
- Emails sent by employees during their nonworking time will undoubtedly be received and during the working time of employee-recipients when the latter use email as part of their work-responsibilities;
- In many cases, it will be unclear what employees are protected or unprotected and what emails can be freely reviewed by the employer without implicating the NLRA;
Finally, dissenting member Johnson opined that the majority’s new standard threatens to undermine an employer’s right to maintain a productive workforce, likely exceeds the Board’s jurisdiction insofar as it imposes unfunded mandates on employers, and because it violates the First Amendment.
The Purple Communications case will almost certainly be appealed. In the meantime, employers should carefully review their policies and practices with respect to electronic communications, and especially the use of email accounts. Care should be taken to explicitly exclude Section 7-protected communications or activities from any list of “prohibited” uses of such systems or devices. Further, those employers with questions about how their policies may be affected should consult experienced legal counsel.
If you have any questions regarding this article, please contact your Davis & Kuelthau attorney or the author, Laurie E. Meyer at 414.225.1419 / firstname.lastname@example.org.