The National Labor Relations Board (the “Board”) overruled its precedent this week by holding that employee use of e-mail for collective action communications during nonworking time must presumptively be permitted where employers have given the same employees access to the employer’s email system.

Background

Respondent Purple Communications, Inc. offers sign-language and two-way telephone interpretation services for deaf individuals.  As with many workplaces, the company assigned its interpreter employees individual accounts on its email system, which the interpreters could access from their workstations, personal computers, and smartphones.  Purple’s electronic communications policy restricted use of company equipment, including email, to business purposes and expressly prohibited employees from using the equipment for “[e]ngaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company” or for “sending uninvited email of a personal nature.”

CWA, the union representing the interpreters, alleged that the policy was an unfair labor practice because it interfered with employees’ rights to engage in protected concerted activity under Section 7 of the National Labor Relations Act (NLRA).

Register Guard and the ALJ Decision

An administrative law judge initially found that the policy was lawful under Register Guard, a 2007 Board decision holding that an employer may completely prohibit employees from using the employer’s email system for Section 7 purposes without demonstrating any business justification, even if they are otherwise permitted access, so long as the employer’s ban is not applied discriminatorily.  The premise of that decision was that email systems are the equivalent of other employer communications-related equipment, including bulletin boards, copy machines, and telephones, and that employers are entitled under the NLRA to ban any nonwork use of such equipment by employees.

Board Reversal Overruling Register Guard

Upon review, the Board overturned Register Guard, finding that broad prohibitions on employees’ personal use of email communications presumptively interfere with Section 7 activity.  In so holding, it recognized the “necessity of communication” among employees to the practice of their free exercise of organization rights, and the ever-increasing importance of email as a form of workplace communication.  The Board reasoned that “email has become such a significant conduit for employees’ communications with one another that it is effectively a new ‘natural gathering place’ and a forum in which coworkers who ‘share common interests’ will seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.”

The Board concluded that the Register Guard decision had given too much weight to employers’ property rights.  It distinguished the flexibility and unlimited capacity of email systems from the earlier, more finite forms of communications equipment – such as telephones, copy machines, and bulletin boards – to which NLRB and court precedent had granted more significant property protections.  Instead of focusing on property rights, the Board applied a different balancing analysis whereby employee use of email for collective communications during nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.  The Board remanded the ultimate question of whether Purple’s policy violated the NLRA back to the administrative law judge who previously found it to be lawful.

There are some important limitations to the Board’s holding:

It applies only to employees who already have access to the employer’s email system in the course of their work and does not require access by non-employees. 

An employer may justify a total or partial ban on nonwork use of email, including Section 7 use on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline.  For example, the decision does not prevent an employer from prohibiting large attachments or audio/video if the employer can demonstrate that they would interfere with the email system’s efficient functioning.

The decision does not apply to any other type of electronic communications systems (such as Facebook or Twitter).

The decision does not prevent employers from continuing to monitor their computers and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for harassment or other purposes that could give rise to employer liability.

Despite these limitations, the decision substantially affects employers’ ability to restrict employees’ nonworking use of email during work hours.  It establishes that prohibitive email communications policies may run afoul of the NLRA regardless of whether they purport to limit working or non-working email use, and regardless of whether other venues or modes of communication for Section 7 activity are available.  The Board recognized that its decision will lead to future questions about how it will affect other electronic communications systems now in existence and yet to come.  At a minimum, employers will need to update their electronic communications policies to ensure that they do not restrict Section 7 rights.  They should also consider reviewing their policies with respect to other forms of electronic communication (such as Twitter and Facebook) that, like email, have become fixtures in the workplace.