NLRB Gives Employees the Right to Use Company Email for Protected Communications

Breaking new ground, the National Labor Relations Board ruled last week that employees have the right to use company email during non-working time to communicate about the terms and conditions of their employment. The Board’s decision in Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014),  overturns its 2007 decision in Register Guard, which held that employees generally do not have a right to use company email for communications protected under Section 7 of the National Labor Relations Act. Our previous posts on the Purple Communications case are here and here.

At issue in Purple Communications was an electronic communications policy that prohibited employees from using their employer’s email system except for “business purposes.” The employees worked as interpreters at various call centers and used company-provided email accounts in the course of their work. The union representing the employees claimed that the business-only email policy was unlawful on its face because it interfered with the employees’ ability to engage in union organizing efforts.

Reversing its holding in Register Guard, the Board found that it had struck the wrong balance in that decision between the rights of employees to engage in Section 7 communications and the property rights of employers in their electronic communications systems. Striking a new balance, the Board held in Purple Communications that employees who have been given access to a company email system have a presumptive right to use the system to communicate about the terms and conditions of their employment during non-working time. According the Board, a company may rebut the presumption and justify a total ban on non-work email by showing that “special circumstances” make the ban necessary to maintain production or discipline. However, absent these special circumstances, employers may impose uniform controls over their systems only to the extent that the controls are needed to maintain production and discipline.

The Board’s decision in Purple Communications leaves a number of questions unanswered, including what showing will be required to demonstrate “special circumstances” justifying a total ban on non-work email use. In addition, because the decision is limited to employee use of company email systems, questions remain as to what restrictions may be permissible concerning the use of other electronic communications systems. What is clear, however, is that with the decision in Purple Communications, the Board is taking very seriously its responsibility to adapt the NLRA to what it has described as the “changing patterns of industrial life.”

The NLRB's Latest Digital Developments

Last May, we highlighted a pending National Labor Relations Board (NLRB) case where the Board requested comments on whether it should reconsider its view that employees do not have a statutory right to use employer-owned email systems for protected concerted activities. Based on its request in Purple Communications, Inc., the Board appeared to be setting the stage for a potential reversal of its position in Register Guard—as well as a significant re-evaluation of what restrictions an employer may, and may not, impose on the use of its electronic communications systems.

It appears now, however, that the Board is still rehearsing its script:  last month, the Board issued its decision in Purple Communications, 361 NLRB No. 43, (Sept. 24, 2014), and explained that it would “sever and hold for further consideration the question whether Purple’s electronic communications policy was unlawful.”  As a result, the Board’s decision did not reach the merits of whether Register Guard should be overturned.   This means that policies prohibiting any non-business use of an employer’s email system will most likely continue to be lawful—at least in the near term.

In another recent development, the Board held for the first time that merely “liking” a comment on a Facebook page may qualify as protected activity if it relates to comments that are otherwise protected under Section 7 of the NLRA.  Among the issues In Three D, LLC, 361 NLRB No. 31 (Aug. 22, 2014), was whether a bar unlawfully terminated several employees after discovering their discussions on Facebook.  The employees had learned that they owed additional taxes as a result of an accounting error by their employer and had taken to Facebook to vent their frustrations.  One of the employees did not offer any written comments, but did “like” another employee’s post.  The Board found that the comments—including the mere “liking” of another post—qualified as protected concerted activity because they concerned a group discussion of workplace complaints.  It was therefore unlawful for the bar to terminate the employees for their participation in the exchange.

The Board’s conclusion that “liking” a social media post may qualify as protected activity is not altogether surprising.  Other courts, for example, have found that “liking” a post qualifies as speech protected by the First Amendment, reasoning that “liking” a comment is just as much a substantive statement as the comment itself.  It is perhaps no surprise, then, that the Board’s decision appears to “like” the same logic.

NLRB Seeking Comments on Employee Email Use

In 2007, the National Labor Relations Board (NLRB) decided in a split decision that employees do not have a statutory right to use an employer’s email system to engage in activities protected under federal labor law.  Relying on this decision, known as Register Guard, many employers have since adopted policies limiting the extent to which employees may use employer-provided email and communications systems for protected concerted activities.

Now, in a case currently pending before the NLRB, the Board has signaled it is considering whether to revisit its holding in Register Guard.  At issue in the case is a decision by an administrative law judge to dismiss an allegation that the employer, Purple Communications, Inc., committed an unfair labor practice by maintaining a rule prohibiting employees from using company email for non-work-related purposes. Disappointed with the judge’s ruling, the NLRB General Counsel filed an exception and requested that the Board overrule the Register Guard decision.
 
The Board appears to have taken the General Counsel’s request to heart and has invited the parties in Purple Communications, Inc., as well as other interested parties, to submit briefs on the issue.  Specifically, the Board has requested parties to address the following questions:

1. Should the Board reconsider its conclusion in Register Guard that employees do not have a statutory right to use their employer’s email system (or other electronic communications systems) for Section 7 purposes?
2. If the Board overrules Register Guard, what standard(s) of employee access to the employer’s electronic communications systems should be established?  What restrictions, if any, may an employer place on such access, and what factors are relevant to such restrictions?
3. In deciding the above questions, to what extent and how should the impact on the employer of employees’ use of an employer’s electronic communications technology affect the issue?
4. Do employee personal electronic devices (e.g., phones, tablets), social media accounts, and/or personal email accounts affect the proper balance to be struck between employers’ rights and employees’ Section 7 rights to communicate about work-related matters? If so, how?
5. Identify any other technological issues concerning email or other electronic communications systems that the Board should consider in answering the foregoing questions, including any relevant changes that may have occurred in electronic communications technology since Register Guard was decided. How should these affect the Board’s decision?

While the invitation for comments on the continuing viability of Register Guard is itself notable, it is also noteworthy that the NLRB has asked parties to comment on the decision in light of how technology, and the uses of that technology, has changed in the last seven years.

The deadline for submitting briefs is June 16, 2014.