NLRB Rules Employees “Presumptively Permitted” to Use Employer Email Systems for Statutorily Protected Communications
On December 11, 2014, in Purple Communications, Inc. and Communications Workers of America, AFL-CIO, Cases 21-CA-095151, 21-RC-091532, and 21-RC-091584, the National Labor Relations Board (the “Board” or “NLRB”) held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”
At issue in Purple Communications, was the Company’s electronic communications policy, which stated that the Company’s electronic systems were to be used for business purposes only. In addition, the policy prohibited employees from using the Company’s email systems to “engag[e] in activities on behalf of organizations or persons with no professional or business affiliation with the Company” and “send uninvited emails of a personal nature”, among other things. The Communications Workers of America and the AFL-CIO brought an unfair labor practice charge against Purple Communications with the NLRB, alleging that the Company’s electronic communications policy interfered with the employees right to engage in “concerted activity” under Section 7 of the National Labor Relations Act.
In reaching its decision, the Board overturned its 2007 decision in Register Guard to the extent Register Guard held that employees have no statutory right to use their employer’s email systems for Section 7 matters. Until Purple Communications, the Register Guard decision had allowed employers to ban non-business use of company email systems as long as that prohibition did not discriminate against Section 7 rights. Such indiscriminate bans are no longer permissible pursuant to Purple Communications unless an employer can demonstrate special circumstances necessary to maintain production or discipline. The Board noted it would be a “rare case” where special circumstances would justify such a sweeping ban.
Of little comfort to employers, the Board limited its decision in Purple Communications to employers who have already granted employees access to their email systems and does not require that employers who have not granted such access do so.
Following the Board’s decision in Purple Communications, employers should review their electronic systems policies in order to ensure compliance with current NLRB standards – or understand the risk of non-compliance. Employers with policies that prohibit non-business use of company email systems may consider language explaining that the ban is not intended to prohibit employees from using the email systems consistent with Section 7 of the NLRA. For further guidance on crafting policies consistent with the Purple Communications decision, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.