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National Labor Relations Board Ruling Necessitates Review of Employer Email Policies

On December 11, 2014, a divided National Labor Relations Board (“NLRB” or “the Board”) issued a ruling with significant implications for employer email policies. In Purple Communications, Inc. and Communications Workers of America, AFL_CIO (“Purple Communications”), the NLRB held that employees who have been granted access to an employer’s email system can use that system for a range of non-business purposes, including union organization. In its decision, the NLRB abandoned its holding in The Guard Publishing Company d/b/a The Register Guard and Eugene Newspaper Guild, CWA Local 37194 that employees have no statutory right to use their employer’s email systems for non-work purposes, calling the 2007 case “clearly incorrect” by failing to adapt to the emergence of email as the primary means of workplace communication.

In Purple Communications, the Board dramatically expanded its protection of employees’ right to use employer email systems for non-work purposes. In its ruling, the Board held that once an employee has been granted access to an employer’s email system, that employee has a presumptive right to use the system for statutorily protected communications on non-working time. The broad nature of Section 7 of the NLRA allowsPurple Communications to potentially encompass a wide range of communication among employees via an employer’s email system.

The ruling has broad implications for employers. Most importantly, an employer seeking to ban non-work use of its email system must demonstrate that the restriction is justified by special circumstances necessary to maintain production or discipline in the workplace. The Board specifically notes that such special circumstances will be the rare exception, and that an employer cannot establish special circumstances by simply pointing to the former existence of a restrictive policy. Instead, an employer has the steep challenge of showing, for example, that the employee non-work use creates a danger of server overload or damage from excessive use. Alternatively, if an employer cannot justify a complete ban, it may be able to limit non-work use by showing that its policies are uniform for all workers and consistently enforced. The employer may only regulate non-work email use to the extent necessary to maintain production and discipline. Finally, employers must use caution in monitoring email systems, as employers bear the responsibility to show that monitoring policies are not seen as improper surveillance or an illegal response to specifically protected employee communication.

Considering the NLRB’s break from precedent, employers must be proactive in evaluating and making appropriate changes to existing and future policies. As the decision applies only to employees who have been granted email system access, employers may wish to evaluate which employees have been granted access and whether a specific employee truly needs to use the employer’s email system. Similarly, employers that permit only incidental personal use of employer email systems may need to revise these policies to allow employees what may essentially be unfettered use of those systems during non-work time. More broadly, employers would be well advised to review existing email and/or technology system monitoring policies to ensure that they are compliant withPurple Communications. 

The full significance of Purple Communications is not yet clear, but it is evident that the NLRB has dramatically broadened the scope of protected employee activity. The NLRB’s ruling may affect additional employee rights, including the right to use instant messaging or texting for non-work purposes. 

Copyright © 2020, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume IV, Number 351
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In recent years, labor and employment disputes have grown larger, more complex and far more likely to pose a significant threat to an employer’s core business interests. The plaintiffs’ bar has dramatically increased its use of high-stakes class, collective, and mass actions to cover a wide spectrum of labor and employment, wage and hour, and public accessibility claims; federal and state agencies are focusing on claims of systemic discrimination and substantially increasing their budgets to litigate pattern or practice cases; and legislators continue to debate laws...

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