On Dec. 11, the National Labor Relations Board (the Board) held that Section 7 of the National Labor Relations Act (the Act) presumptively entitles employees to use company-provided email systems to engage in communications regarding Section 7 rights (i.e., the right to work together to better working conditions with or without the involvement of a union). In Purple Communications, Inc., expressly overturning precedent that was less than one decade old, the Board found that this decision is “consistent with the purposes and policies of the Act and [the Board’s] obligation to accommodate the competing rights of employers and employees” within “the changing patterns of industrial life.”
Purple Communications, Inc., a sign language interpretation service, assigned its employees individual email accounts that were accessible on company computers and workstations, as well as employees’ own personal devices. The company’s policy explicitly required that email, as well as other communication tools it provides for its employees, “be used for business purposes only.” It also prohibited its employees from using company email to “engag[e] in activities on behalf of organizations or persons with no professional affiliation or business with the company,” and to “send uninvited email of a personal nature.”
The company, much like many others, had good reason to believe that its policies were compliant with the law. Less than eight years ago, the Board found these policies to be entirely lawful. In 2007’s Register Guard, 351 NLRB 1110 (2007), the Board held that employers were permitted to completely prohibit employees from using employer email systems for any nonwork use, including Section 7 communication. The Board’s holding in Register Guard was premised on the understanding that email systems are equivalent to other employer communications equipment, such as copy machines, bulletin boards, and telephones, and that employers were permitted to ban the nonwork use of any such equipment by their employees. In Register Guard, the Board relied on Mid-Mountain Foods, 332 NLRB 229 (2000), in which it held that “there is no statutory right of an employee to use an employer’s equipment or media.”
However, in Purple Communications, Inc., the Board cited to past precedent by noting that Section 7 of the Act “necessarily encompasses the right to effectively communicate with one another regarding self-organization at the job site.” In this case, rather than find company email systems analogous to “equipment,” it held that email “is fundamentally a forum for communication.” The Board thus looked to communication cases to decide how to assess the relative rights of employer and employee, and in particular adopted the framework of Republic Aviation, 324 U.S. 793 (1945). In Republic Aviation, the Board rejected an employer policy barring all oral solicitation at any time on its property because it violated Section 7’s right to effectively communicate. In adopting the premise of Republic Aviation, the Board in Purple Communications, Inc. thus determined there is a presumption of the right to communicate in the workplace on nonworking time, including through a company’s email system.
The majority did attempt to craft some limitations on to its holding. For example, it noted that this new framework does not require companies to offer email to employees in the first instance, that the decision solely applies to email, and that it only applies to employees. In addition, the majority allowed for the possibility of a total or partial ban on nonwork use of email, assuming an employer can justify it as “necessary to maintain production or discipline” – although the decision gave minimal insight as to what an employer would be required to prove in order to maintain such a policy.
Two members vigorously dissented from the Board’s decision. Member Philip Miscimarra, called the majority decision “an unfortunate and ill-advised departure” from “undisputed, decades-old principles that are clear, widely understood, and easy to apply,” argued in his ten-page dissent that public forms of electronic communication, such as email services, social media, and text messaging, offer perfectly acceptable forums for employees to act collectively. It follows, then, that an employer is not unreasonably preventing employees from engaging in concerted activity when it prohibits nonwork email usage. In addition, member Harry I. Johnson III, argued that the majority’s decision transformed the convenience and versatility of email into “some kind of rule of adverse possession by employees,” where employees can take over whole swaths of company property simply because it is in digital, rather than physical, space.
There may well be many unintended consequences of this decision that affect both management and employees alike. As member Miscimarra stated in his dissent, the decision “effectively requires employers to give many employees the Board-mandated use of computer systems and related equipment requiring investments ranging into the millions of dollars.” The unusual length of the majority and dissent decisions points to the heated nature of the issue and the likelihood that this decision will not be the last word we hear on this matter and related topics. Indeed, although the decision is confined to email usage, portions of it seems to portend that the Board will be asked to address related issues in the near future, such as employee access to a company’s social media accounts. Moreover, it is probable that this decision will be appealed. For now, however, this decision is good Board law and applies to all workplaces, whether or not unionized. Employers should review and, if necessary, revise their electronic usage policies to ensure that they are in compliant within this new rule of law.