KMK Law Complex Litigation Blog

In a reversal of precedent, a divided National Labor Relations Board (“NLRB”) held yesterday that employees have a right to use their employers’ email systems for non-business purposes, including statutorily protected communications regarding the terms and conditions of their employment and regarding union organizing efforts.  See Purple Communications, Inc., 361 NLRB No. 126 (December 11, 2014).  The NLRB’s ruling stemmed from a case brought by the Communications Workers of America union after it unsuccessfully attempted to organize employees of Purple Communications, Inc., a company that provides interpreting services for the deaf and hearing-impaired.  The union argued that prohibiting the company’s workers from using the company’s email system for non-business purposes and on behalf of organizations not associated with the company interfered with the CWA’s organizing efforts.

Since the NLRB’s 2007 decision in Register Guard, employers were allowed to prohibit employees from using employer-owned email systems for non-work purposes, including activity protected by Section 7 of the National Labor Relations Act.  In Purple Communications, the Administrative Law Judge relied on Register Guard and held that the employer could lawfully limit the use of its email systems in that manner.  The NLRB, however, expressly overruled the Register Guard decision, and held:

Consistent with the purposes and policies of the act and our obligation to accommodate the competing rights of employers and employees, we decide today that employee use of email for statutorily protected communications on nonworking time must be presumptively permitted by employers who have chosen to give employees access to their email systems.

The Board reasoned that the Register Guard decision placed too much emphasis on employers’ property rights and too little on the importance of email as a means of workplace communication and therefore failed to adequately protect employees’ rights under the Act.  The majority limited its decision, noting it applied only to workers who have already been granted access to their employer’s email system, and that employers would still have the opportunity to demonstrate that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights. 

We will continue monitoring the fallout from this decision, including whether the decision is challenged.  At this time, employers are encouraged to review existing communication and email use policies to determine whether they must be rescinded or revised in light of this decision.  It is important for employers to make an assessment as to the continuing validity of policies limiting non-business use of email systems, including whether revision to such policies based upon specific business circumstances may insulate a revised policy from challenge under the National Labor Relations Act (NLRA).