Bad Outlook: NLRB Rules That Employers Must Surrender Email Systems to Employees

Factual Background

Purple Communications, Inc. (Purple or the Company) provides sign-language interpretation services. It employs interpreters at 16 call centers nationwide. Purple assigns its interpreters individual email accounts on its corporate email system, and the employees use those accounts every day that they are at work. They are able to access their Company email accounts on the computers at their workstations, as well as on computers in the call centers’ break areas — and on their personal computers and smartphones.

Since June 2012, Purple has maintained an employee handbook with the following electronic communications policy (the 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.

…
Prohibited activities
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.

In 2012, the Communications Workers of America (the Union) filed petitions to represent the interpreters that resulted in elections at seven of Purple’s call centers. The Union filed objections to the results of the elections at two of the call centers, including an objection that the Policy interfered with the interpreters’ freedom of choice in the election under Section 7 of the NLRA, and was thus an unfair labor practice under Section 8(a)(1) of the Act.

The NLRB’s Decision

After a hearing before an Administrative Law Judge (ALJ), the ALJ found that the Policy was valid under Register Guard, 351NLRB 1110 (2007), enfd. in relevant part and remanded sub nom. Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009). In Register Guard, the Board held that an employer may completely prohibit employees from using the employer’s email system for Section 7 purposes even if they are otherwise permitted access to the system, and may do so without demonstrating any business justification so long as the ban is not applied discriminatorily.

The NLRB General Counsel argued that the NLRB should overturn Register Guard, and instead return to the more general framework of Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945). In Republic Aviation, the Supreme Court weighed the employer’s management rights and the need to maintain order and discipline in the workplace against the employees’ rights under the Act. The Court held that when an employee is not on work time, his time is his own, and he can engage in union solicitation activity even though he is on the employer’s property. Through subsequent decisions, the Board continued to refine employee and union access rights on an employer’s property, ushering in an era during which the Board increasingly allowed employees access to solicit for a union and distribute union information at the work site. The General Counsel took the position that Republic Aviation and its progeny stands for the basic premise that employees have a protected right to communicate with each other at work, even where they have alternative means of communicating outside of the workplace.

Purple argued that Board precedents regarding in person communication cannot easily be equated to unfettered email access. The Company maintained that its email restrictions were aimed at cutting down on workplace distractions, and were not intended to thwart protected conduct. Further, Purple argued that an employee’s need to use the employer’s property to communicate with other employees has only waned since Register Guard, because the availability of personal email accounts and smart phones has greatly expanded their ability to engage in Section 7 communications without utilizing their employer’s equipment.

A 3-2 majority of the Board agreed with the NLRB General Counsel and overturned Register Guard. It found that Register Guard undervalued employees’ core Section 7 right to communicate in the workplace about the terms and conditions of their employment, while giving far too much weight to employers’ property rights. The Board further found that the Register Guard majority “inexplicably failed to perceive the importance of email as a means by which employees engage in protected communications, an importance that has increased dramatically during the 7 years since Register Guard issued.” Finally, the Board found that the Register Guard majority mistakenly placed more weight on the Board’s prior decisions concerning use of employers’ property and equipment than those precedents could bear. For those reasons, the Board overruled Register Guard’s holding that, under ordinary circumstances, even employees who have been given access to their employer’s email system have no right to use it for Section 7 purposes.

The Board held that employees who have been given access to the employer’s email system in the course of their work are entitled to use that system to engage in discussions about the terms and conditions of their employment while on nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions. An assertion of special circumstances will require that the employer articulate the interest at issue and demonstrate how that interest supports restricting the employees’ access to email during nonworking time.

The Board did not address email access by nonemployees, nor did it address any other types of employer electronic communication systems.

The Dissents

Board Members Philip Miscimarra and Harry Johnson, III filed lengthy dissents. Board Member Johnson, who thought the issue in the case was not even a “close one,” chastised the majority’s decision to overturn Register Guard. He argued that the majority’s view “is a radical departure from long-settled Board and court precedent.” He criticized the majority for overlooking the widespread availability of personal email for communications between employees, stating that the 87 billion personal emails sent per day highlight the extent to which employees “find personal email just as incredibly versatile and convenient as a communications network, as businesses find with business email.” He also reasoned that the majority failed to recognize the myriad other ways that employees can still engage in Section 7 communications, sacrificing in the process employers’ rights to manage their own email system in a manner that goes well beyond the requirements imposed by the Act.

The Consequences

Left undisturbed, the Board’s ruling will have a dramatic impact on how employers write and enforce workplace policies relating to the uses of email and other technology. The ruling also gives unions another advantage by opening the door for employees to send emails in support of organizing efforts. The decision does not go so far as to allow an employee to use the email system for illegal or otherwise illicit purposes. But, with the stringent limits that the ruling places on employers, it will make it much more difficult for employers to regulate their email systems going forward without categorically precluding employee access thereto, which in most cases seems impracticable.

If you have any questions about this Alert, please contact the authors of this post or the Arent Fox professional who handles your matter.