In a case that is a significant victory for unions, the National Labor Relations Board ("Board") recently ruled in Purple Communications, 361 NLRB No. 126 (2014), that employees have a presumptive right under Section 7 of the National Labor Relations Act to use their company's email system for the purposes of union organizing or discussing the terms and conditions of their employment, during non-working time.  This decision overturns a prior Board ruling in Register Guard, 351 NLRB No. 70 (2007), which held that a company could implement an email policy that allowed personal email and solicitations (such as party invitations, birth announcements, jokes, etc.), but prohibited notices in support of organizations (such as a union).

Brief History of Case and Proceedings

The employer in this case, Purple Communications, had an electronic communications policy that prohibited employees from using the company's internet, intranet and email system for (a) engaging in activities on behalf of organizations or persons with no professional or business affiliation with the company and (b) sending uninvited email of a personal nature.

The Communications Workers of America, AFL-CIO ("CWA") sought to organize the company and challenged the electronic communications policy as unlawful.  Relying on Register Guard, an Administrative Law Judge ("ALJ") ruled in favor of the employer and found that the electronic communications policy was lawful.

The CWA filed an appeal ? known as "exceptions" ? to the Board.

The Board's Decision

The Board reversed the decision of the ALJ, ruled that the electronic communications policy was unlawful, and overturned its prior decision in Register Guard.  In explaining the reason for its decision, the Board first engaged in a lengthy discussion of how email has become a "natural gathering place" for employee communication and a forum in which coworkers "share common interests" with each other.  Therefore, the Board reasoned, the decision in Register Guard failed to fully acknowledge the role email now plays in workplace communications.

In addition, the Board posited that under a Supreme Court case called Republic Aviation v. National Labor Relations Board, 324 U.S. 793 (1945), it was required to balance the rights of employees under Section 7 to join or support a union with the legitimate business interests of an employer when analyzing an electronic communications policy.  Accordingly, under Republic Aviation, the Board adopted an analytical framework that presumes employees who have company email are entitled to use the email to engage in discussions that are protected by Section 7 while on non-working time, absent a showing by the employer that special circumstances justify specific restrictions.  In other words, employees can now use company email for union solicitation or to discuss terms and conditions of employment with others, unless the employer can show it needs to implement restrictions in order to maintain order and discipline in the workplace.

The Board also noted, however, that its ruling is "carefully limited" as follows:

1. It applies only to employees who have already been given an email account.  Additionally, employers are not required to give all employees email accounts.
2. The right to use email for Section 7 purposes applies only during non-work time.  Employers can still prohibit employees from using the company's email for such purposes during working time (i.e. time that the employee is "on the clock").
3. This new analytical framework creates only a presumption that employees can use company email to engage in Section 7 activity.  This presumption can be rebutted upon a showing by the employer that "special circumstances" are necessary to maintain production or discipline that justifies restricting its employees' rights.  The Board also explained that it would be a "rare case" where special circumstances justify a total ban on non-work email use by employees, and that it would be more "typical" for employers to apply uniform and consistently enforced controls over their email system to the extent that such controls are necessary to maintain production and discipline.
4. This ruling applies to the use of company email by employees only.  The ruling does not give nonemployees access to company email.
5. Employers are not prevented from monitoring their employees' email, as long as the employer does nothing "out of the ordinary" such as increasing its monitoring during an organizational campaign or focusing its monitoring efforts on known union supporters.

What This Decision Means for Employers

All workplaces covered by the National Labor Relations Act, regardless of whether the company is unionized, should examine their electronic communications policy.  If the electronic communications policy contains a business use only restriction, the policy should be updated to ensure compliance with the law in light of Purple Communications.  For example, any restrictions against using email for purposes of Section 7 activity should be limited to working time.  In addition, companies should also reserve the right to evaluate whether "special circumstances" exist to implement a total or partial ban on non-work emails in order to maintain production or discipline in the workplace.  Finally, if the policy doesn't already do so, it should contain language stating that the electronic communications system is the property of the company and the company reserves the right to monitor employees' email use.

Additionally, while employees can now use company email for purposes of union solicitation and airing grievances, it is unclear whether employers will actually see an influx of such communications by employees.  Generally, most employees tend to engage in discussions about union in private because they either don't want their employer to know they are union supporters or don't want their employer to know what they're saying about the company.  Accordingly, because employers still have a right to monitor their employees' email usage, some employees may be hesitant to use company email for discussion they wish to keep confidential.  Nevertheless, employers should still be prepared for some increased use of company email for Section 7 activity.

Finally, employers are not required to allow employees to use company email for any and all non-business purposes.  Rather, under Purple Communications, employers just cannot prevent employees from using email to exercise their Section 7 rights during non-work time.  Computer Use / Email / Information Systems Policy