Email SymbolsThis blog was authored by Alex Polishuk

Employer email policies often prohibit employees from using workplace emails for communications that do not relate to business purposes.  However, under a recent National Labor Relations Board (“NLRB” or “Board”) decision, business-use-only email policies may now be unlawful.  In Purple Communications, Inc. (2014), the NLRB ruled that employers must presumptively allow employees to use their work issued email accounts for statutorily protected communications during nonworking time.

By way of background, Section 7 of the National Labor Relations Act provides employees with, among other things, the right to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection (29 U.S.C. Section 157).  This includes, among other things, the right to communicate about union organization, wages, or working conditions.  Purple Communications specializes in providing sign language interpreters for video communications between deaf and hard-of-hearing individuals.  Purple Communications established a policy prohibiting employees from using its email system except for “business purposes.”   The Communications Workers of America filed an unfair labor practice charge with the NLRB challenging the policy as unlawful.

The NLRB’s lengthy and detailed decision in this matter first focused on its previous decision in Register Guard (2007), which held that an employer may completely prohibit employees from using the employer’s email system for non-business related purposes, including Section 7 activities, if the employer’s ban was not applied discriminatorily.  In the instant decision, the NLRB overruled the Register Guard decision, observing, among other things, that it “failed to perceive the importance of email as a means by which employees engage in protected communications.”  Thereafter, the NLRB ruled that employees who have rightful access to their employer’s email system in the course of their work cannot be restricted from using that email for communications protected under Section 7, e.g., communications about union organization, wages, or working conditions.  While the NLRB indicated that its decision is “limited,” it appears to vastly expand the rights of employees to use workplace email during nonworking hours.

Although the NLRB recognized several caveats to its ruling, the Board did not provide detailed instructions about the application of these exceptions.  For example, the NLRB recognized that employers could enforce a blanket ban on nonwork time use of work issued email accounts.  However, the NLRB indicated that this would be “the rare case where special circumstances justify a total ban on nonwork email use by employees[,]” which would require the employer to “demonstrate the connection between the interest it asserts and the restriction.”  The NLRB gave no examples or explanations of what these “special circumstances” may entail.

The NLRB also affirmed employers’ right to monitor their computers and email systems for “legitimate management reasons,” such as ensuring productivity and preventing email use for purposes of harassment or other activities that could give rise to employer liability.  The NLRB also acknowledged that employers may inform their employees that they have no expectation of privacy in their use of the employer’s email system.  The NLRB also addressed concerns that that its instant ruling may leave employers vulnerable to allegations of “unlawful surveillance” of employees’ Section 7 activity.

The NLRB did not explain what exactly it meant by “unlawful surveillance.” Rather, the NLRB indicated that it was “confident…that we can assess any surveillance allegations by the same standards that we apply to alleged surveillance in the bricks-and-mortar world.”  The dissenting members were not as confident and expressed concern over employers’ right to monitor their email systems.  Member Phillip A. Miscimarra opined that “[n]obody will benefit when employees, employers, and unions realize they cannot determine which employer-based electronic communications are protected, which are not, when employer intervention is essential, and when it is prohibited as a matter of law.”

For the public sector, the NLRB’s decisions are only persuasive and or advisory.  However, public sector employers should not take much solace from NLRB’s lack of jurisdiction over its affairs.   This decision may reflect a sea of change in this area of the law generally.  It is not unusual for the Public Employment Relations Board (“PERB”), which does have jurisdiction over the public sector, to adopt NLRB rulings.  This could be particularly true in instances in which PERB attempts to conform legal principles it develops to the realities of current technology.

The effect of the Purple Communications, Inc. decision, until and unless it is overturned on appellate review, appears to be substantial.  Employers who have a business-use-only policy for their email systems should consider modifying their rule.  Further, employers with a blanket prohibition on use of workplace email during nonworking hours should have in place an articulable policy justifying its rule, and one that will satisfy the Purple Communications standards for such a rule.  Additionally, employers that monitor their email systems must ensure that their method of surveillance is uniform with regard to all employees and minimize the potential for claims of disparate monitoring of protected concerted activity.  And finally, in light of the expansive rights to work-issued emails that the Purple Communications, Inc. decision secured for employees, employers should confirm that their policies clearly inform employees that they do not have a right to privacy with respect to emails sent or received using the employer’s email system and that the employer reserves the right to monitor and review all such communications.