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'Access' Was at the Heart of NLRB's Email Ruling

By: J. Bruce Cross and Anna Elento-Sneed

Submitted by Firm:
Cross, Gunter, Witherspoon & Galchus, P.C.
Firm Contacts:
Abtin Mehdizadegan, J. Bruce Cross, Misty Wilson Borkowski
Article Type:
Legal Update
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The National Labor Relations Board has revitalized itself in recent years by finding many workplace policies overbroad in violation of federal labor law. Policies governing topics such as social media, nondisparagement, workplace courtesy and confidentiality have all fallen under the NLRB's review. The NLRB's latest ruling in Purple Communications Inc. guarantees the agency will be kept very busy reviewing disputes over company email, at least until the new “rule” is fully defined or overturned.

Background

In 2012, the NLRB issued a charge against Purple Communications, a deaf and hard-of-hearing communications technology company based out of California, alleging, among other things, that its company email policy was overbroad and unduly restrictive to its employees’ ability to discuss working conditions and terms of employment. The relevant email and other company communications policy facing the NLRB’s scrutiny in that case stated:

Computers, laptops, internet access, voicemail, electronic mail (email), Blackberry, cellular telephones and/or other Company equipment is provided and maintained by Purple to facilitate Company business. All information and messages stored, sent, and received on these systems are the sole and exclusive property of the Company, regardless of the author or recipient. All such equipment and access should be used for business purposes only.


The policy was challenged after an unsuccessful representation election was conducted by a local union. The NLRB's general counsel argued that the employer’s policy was overly broad because it prohibited the use of company email for “engaging in activities on behalf of organizations or persons with no professional or business affiliation with the company,” thus interfering with the employees’ exercise of Section 7 rights. The general counsel conceded that ruling in its favor would require overruling the NLRB’s previous holding in Register Guard, 351 NLRB 1110 (2007). The administrative law judge assigned to the Purple Communications case held, “I am bound to follow Board precedent that has not been reversed by the Supreme Court.” The ALJ added that any decision to overrule binding precedent was for the NLRB to decide. The case was appealed.

The NLRB's Decision

On appeal, the NLRB's general counsel argued that Register-Guard should be overruled because it failed to appreciate the importance of electronic communications among employees in the modern workforce. The general counsel cited statistics showing that email communications are becoming the most prevalent method of communication and that it is only expected to grow in the near future. The general counsel also asserted that employers could still restrict employees’ use of company email systems by showing that, under a particularized showing, the employer’s interest in maintaining production and efficiency outweighs its employees’ Section 7 rights.

In response, Purple Communications and several amicus briefs argued just the opposite. First, the opposition contended that granting employees unrestricted access to company email accounts for nonworking purposes could lead to unintended consequences, such as increased spam and a heightened risk of viruses to email systems that could cause disruptions to workplace efficiency. Second, the opponents argued that in-person conversations among employees while at work (“water cooler discussions”) during nonworking time still protects Section 7 rights without those negative consequences. Moreover, if email communications are allowed to be sent to individuals or entities outside of the company, then there exists a risk of disclosure of confidential and proprietary information, whether intended or not, due to the fact that many employers would be required to adjust their firewalls and other security software to allow outside emails to be exchanged among their employees.

Third, Purple Communications and interested employers also argued that the increased use of personal communication devices with cellular and Internet capabilities, as well as the availability of free and publicly available email and social media accounts, provides employees’ with the opportunity to have any desired conversations while off work. Once again, employers contended that this protects Section 7 rights without infringing on employers’ property or increasing the risk of security breaches, lost productivity or email system failures. In light of these unintended consequences, Purple Communications and other interested parties contend that the current standard set forth in Register Guard is an appropriate rule with regard to access to and use of company email.

After addressing the arguments raised by employers and business groups, as well as extensive arguments raised by the dissenting board members Phil Miscimarra and Harry Johnson, the majority — Chairman Mark Pearce and board members Kent Hirozawa and Nancy Schiffer — overturned Register Guard and issued their new Purple Communications rule based on previous U.S. Supreme Court precedent set in Republic Aviation, 324 U.S. 793 (1945).

In other words, rather than analyzing the issue to be whether an employee has the right to use company equipment, the majority analyzed the case as an issue involving “access” to an employer’s premises and the right of employees to engage in Section 7 activities, on nonworking time, while on the employer’s premises. In short, the majority viewed the company email system as a virtual workplace and “fundamentally a forum for communication.” 

Accordingly, the majority has set out a new analytical framework for evaluating employees’ use of their employer’s email systems. Under this framework, employees who have been granted access to their company’s email systems must be allowed to use them to engage in protected Section 7 communications during nonworking time. The fact that employees may have alternative methods of communication available to them (e.g., face-to-face discussion, social media or personal email accounts) does not excuse the employer from allowing employees to use company email for protected Section 7 communications. The majority indicated that employers may apply uniform and consistently enforced controls over email systems “to the extent that those controls are necessary to maintain production and discipline,” and they also noted that there may be rare situations “where special circumstances justify a total ban on non-work email use by employees.”  However, the majority made it clear that such restrictions would have to be weighed against an employee’s right to engage in protected speech. Indeed, the NLRB pointed out that the “decision cannot resolve all the questions that will arise as a result of our recognizing the right of employees to use their employers’ email systems for protected communications on nonworking time, let alone as a result of the still more advanced electronic communications systems now in existence and yet to come.” In short, this is an area the NLRB will continue to wade through as the technology evolves.     

The NLRB did not decide the applicability of this standard to nonemployee third parties. That issue will likely be addressed at some point in the future.        

Potential Impact on Employers

Now that the NLRB has adopted its new Purple Communications rule compelling employers to allow employees to use company email for personal communications, the impact will be far-reaching. This is because email systems are not electronic “water coolers" as suggested by the general counsel, or some area in a virtual workplace where employees on nonworking time can engage in protected speech as envisioned by the majority. On the contrary, email systems are more like postal services that combine written communications with incredible storage capacity. With these systems, every email becomes a “document” that is instantly stored until someone purges it from the system’s electronic memory. The burdens of maintaining such a system for business use only are already considerable. Now that the NLRB is requiring employers to make email systems available to employees who use them for protected Section 7 speech, as well as general business purposes, the time and costs of doing so could be overwhelming. Consider the following issues:    

Storage Capacity

Although email systems have incredible storage capacity, that capacity is not unlimited. If employees are allowed to use company email systems for personal communications (without trying to weed out protected speech from unprotected speech), the “documents” retained on company systems could dramatically increase and exceed available storage capacity. When that happens, additional server space must be obtained or emails must be purged. Would employers be responsible for bearing the cost of storing personal emails and, if so, would the costs of maintaining personal emails have to be treated as taxable income to the employees (similar to personal use of company cars) since the emails are not business-related? Alternatively, if the decision is made to purge emails in order to make storage space available, would employers be held responsible for purging a personal document containing protected speech that the employee wanted retained? How does one distinguish protected and unprotected emails? Furthermore, how long must protected emails be retained? If an employer’s current practice is to purge cached emails after 30 days, must a six-month period be implemented to avoid a spoliation claim by a union, employee or the NLRB's general counsel?

In addition, most companies have spam-blocking software on their email systems to help protect their health. If the spam filter blocks an email due to a union flyer attachment, is this now an unfair labor practice?      

Monitoring of Computer Systems

Many employers have adopted policies prohibiting employees from misusing company computers (e.g., using company computers to engage in harassment, view pornography, run personal businesses or download pirated software). These policies often require information technology supervisors and staff to regularly monitor employee use and report any violations. Such routine monitoring could become problematic if the employer and employees are going through the union organizing process, collective bargaining or a grievance. Could monitoring of employee email or Internet usage in those situations be considered unlawful surveillance? In addition to claims under federal labor law, could monitoring of personal email also lead to common law claims for invasion of privacy?

Litigation and E-Discovery

The burdens of maintaining email and other electronic records are considerable, particularly when records are pertinent to litigation. As federal courts have discovered in the past few years, sorting through electronic document production, metadata, document retention and spoliation issues can be a nightmare. This nightmare will surely be visited upon the NLRB, employers, unions and employees if email and other electronic records become relevant in grievances, arbitrations, board actions and appeals to federal courts. Who will bear the costs of looking through terabytes or petabytes of information to find the relevant emails? And what happens if the dispute is not between the employer and the employee, but is between the employee and a third party? Can the employee be required to reimburse his/her employer for the cost of producing the employee’s personal email for use in a nonwork-related litigation?  

These issues, and many others, will have to be addressed in the coming months … or years. Otherwise, employers will be left to make these decisions, likely on an ad hoc basis, with no guidance from any federal authorities. Whether the NLRB is prepared to address these issues is another question.

[Originally published on Law360, Dec. 12, 2013. Posted with permission]