NLRB Gives Employees Right to Use Company Email Systems for Union Organizing and Protected Activity

In a development expected by many observers, the National Labor Relations Board has ruled in Purple Communications Inc. that employees have the right to use their company email accounts for protected concerted activity, which may include union organizing.  The ruling reverses a prior holding by the Board from December 2007 that emphasized the employer’s property rights in its email system. Under the new policy, the Board has moved away from strict protection of property rights and instead balances those rights against the employees’right to engage in concerted activity, much like the balancing tests the Board applies in its treatment of solicitation, distribution, and access to parts of the employer’s physical plant.

At issue in Purple Communications was the employer’s electronic communication policy, which included the following provisions:

• Company email should be used for business purposes only.

• Employees are prohibited from using the company email system to engage in activities on behalf of organizations or persons with no professional business affiliation with the Company.

• Employees are prohibited from using the company email system to send uninvited email of a personal nature.

The charging party contended that restricting employee use of company email in this manner was an unfair labor practice under the National Labor Relations Act (NLRA).

As employers know, Section 7 of the NLRA grants employees the right to engage in concerted activities for the purpose of collective bargaining, or other mutual aid or protection, including the right to communicate effectively with one another regarding self-organization at the workplace. Under precedent established by the Board in Register Guard, the Board did not treat company email systems as part of the workplace; employers could prohibit employees from using the employer’s email system for Section 7 purposes, even if employees were permitted to use the system for other reasons, and without providing any business justification.

The New Rule

In Purple Communications, the Board explicitly overturned Register Guard’s ruling on employee use of email and announced a new rule governing the employees’ right to use company-issued email accounts for union activity: Employees with employer email accounts may use those accounts to discuss their terms and conditions of employment, absent special circumstances that justify restrictions to maintain production or discipline.  Precisely what the Board would consider “special circumstances” is not especially clear, but the Board’s opinion anticipates such situations arising only rarely.  If the employer does establish special circumstances, its restrictions on employee email use must still be applied in a uniform and consistent manner, and be narrowly tailored to the specific business needs for the restriction.

Limits of the New Rule

Although the Board’s new policy will require action by employers (explained below), the Board limited its decision in ways that should minimize compliance difficulties.

• Employers are not required to issue email accounts to employees specifically to comply with Purple Communications. The standard established by the decision only applies where employers have chosen to give employees access to their email systems.

• The decision only applies to email, not other employer-provided communication systems.

• Employers are not required to issue email accounts or provide access to company email systems to non-employees. The decision only applies to employees. (The opinion does not address employers’ right to block emails from external sources.)

Although not explicitly mentioned in the Board’s decision, it should also be noted that Register Guard contained important holdings that were not overruled by Purple Communications, most notably the NLRB’s holding on the definition of “discrimination” under the NLRA, which was welcomed by many.  Further, taken to its logical conclusion, the Board’s ruling in Purple Communications may have interesting implications for employer conduct in union decertification petitions.  Historically, of course, employers have been forbidden to provide any assistance (including the use of a photocopier) to employees seeking to decertify a bargaining representative.  If employees are now entitled to limited use of the employer’s electronic infrastructure for organizing purposes, these resources may also be available for decertification purposes as well.

Implications for Employer Email Policies

Employers could reasonably wonder about the effect Purple Communications will have on their right to monitor employee email activity; in most cases, the effect should be negligible.  The Board noted in its decision that its holding does not prevent employers from continuing to monitor computer use and internal email activity for legitimate reasons, such as ensuring productivity and conducting internal investigations – which the Board characterized as doing “nothing out of the ordinary.” In addition, employers can (and should) still inform employees that they monitor, or reserve the right to monitor, emails on company accounts for legitimate business reasons and that employees have no expectation of privacy in their use of an employer-issued email account. However, regardless of the outcome of the employer’s decision whether to read employee emails on company-issued accounts, the employer should take care to not specifically target employees who have engaged in protected concerted activity – doing so may amount to unlawful discriminatory treatment.  Further, publicly drawing attention to this form of surveillance, for example initiating email monitoring in response to news of a union organizing campaign, may intimidate employees from engaging in protected activity in a manner that independently violates the NLRA.

Next Steps

In light of the Board’s decision, employers should consider the following actions:

• Employers should review and update their electronic communications policies. Maintaining an email policy that violates the Board’s new interpretation, even absent enforcement of the policy, may constitute an unfair labor practice. Because the Board has decided to apply the new rule retroactively, employers who previously relied on Register Guard to prohibit use of company email accounts for union activity now have unlawful email policies.

• Employers that monitor employee email accounts should review their monitoring policies and ensure they are being applied neutrally and not in a manner that could be seen as hostile to concerted activity, including organized labor. Employers that do not currently monitor their email systems should carefully time their announcement implementing one; if a monitoring policy is announced too close in time to union organizing or activity, it may be considered an unlawful attempt to deter union activity.

As often in labor law, the Board’s pronouncements in Purple Communications have inspired a certain amount of agitated commentary.  Judging from our own clients’ experience, it may be that few employers have explicitly relied on Register Guard to prohibit use of company email for union-related purposes, or devoted time or resources to enforcing such a policy.  In such cases, the necessary response may simply be to update employee handbooks and policies to remain in compliance with the NLRA.

If you have any questions about how to comply with this ruling, please contact John P. Keil at (212) 758-7862, or any other attorney at the Firm.

Amanda M. Baker, an associate with the Firm, assisted in the preparation of this article.