In Key Reversal, Board Grants Email Rights to Employees

BY: DAVID C. BURTON AND J. NELSON WILKINSON 

In a reversal of its Bush-era decision, a divided National Labor Relations Board has ruled that employees generally have a right to use their employer’s email systems for union organizing and other protected purposes.

In 2007, a similarly-divided Board held, in the case of Register Guard, that an employer could restrict employees’ use of its email systems, including prohibiting union-organizing communications, without violating the National Labor Relations Act. Emphasizing an employer’s property rights to its own computer systems, Register Guard afforded employers broad discretion in fashioning employee email rules. An employer could, for instance, prohibit solicitations (including union solicitations) but still permit certain other types of nonwork email.

That decision was an anathema to Union supporters, and many practitioners expected that it would be overturned by the current administration’s Board. Indeed, the December 11, 2014 decision in Purple Communications, Inc. v. the AFL-CIO has overturned Register Guard’s key holdings. Purple Communications has introduced a new set of rules pertaining to restrictions on employer email systems:

• once an employer gives an employee access to its email system, it must permit that employee to use that email system, at least during nonwork time, to communicate regarding self-organization or about terms and conditions of employment;
• employers may not ban all nonwork emails (so as to include organizing emails) unless they demonstrate “special circumstances” justifying such a ban; and, in any event,
• employers may no longer selectively ban categories of nonwork emails that include union solicitations while permitting other types of nonwork email.

The Board, somewhat unconvincingly, calls the impact of these rules “limited.” In fact, the exceptions it identifies are, as a practical matter, extremely narrow. For instance, although the Board claims it will permit total bans on nonwork email in certain “special circumstances,” few employers will be able to invoke this defense. As an initial matter, demonstrating “special circumstances” appears to be a fairly high burden. More importantly, most employers will not get that far because most do not actually enforce a complete ban on nonwork email. If employers have permitted any nonwork emails in the past, for instance concerning holiday parties or charities, they will almost certainly now have to permit organizing emails as well.

The full implications of this decision have not yet been fleshed out by the Board, and ultimately an appeal to the federal courts, and another reversal, are possible. As an initial step, however, conscientious employers should review their email policies to ensure that their rules do not run afoul of the mandates announced in Purple Communications.