On December 11, 2014, the National Labor Relations Board (NLRB or the Board) ruled that employees have a right to use their company email accounts, during non-working time, for statutorily protected activity, such as union organizing. Union representatives challenged Purple Communications, Inc.'s electronic communications policy because it prevented workers from using the company email system for nonbusiness-related purposes. The Purple Communications decision reversed prior Board precedent, which had been in place since its 2007 Register Guard decision.
In Register Guard, the employer had a policy which stated that its email system was "not to be used to solicit or proselytize for commercial ventures, religious, or political causes, outside organization, or other non-job-related solicitations." The employer had allowed internal solicitations and personal messages from its employees, but there had not been any attempt at solicitation for an outside organization. The Board held in Register Guard that the Company's policy was lawful, as long as it was consistently applied to all outside organizations.
Fast forward seven years to an age of ever-advancing technology and a different Administration in the White House. It is no secret that the current Board is focused on expanding employee and union rights under the National Labor Relations Act to the detriment of employers, including non-union employers. The decision in Purple Communications, although narrowly decided, exemplifies the Board's current agenda. Purple Communications squarely reverses the holding in Register Guard by requiring employers, who allow employees to access company email, to open up their email systems to nonbusiness-related communications. As to its ruling in Register Guard, the NLRB said that "by focusing too much on employers' property rights and too little on the importance of email as a means of workplace communication, the Board failed to adequately protect employees' rights under the Act and abdicated its responsibility 'to adapt the Act to the changing patterns of industrial life.'"
The expanded right to organize as articulated in the Purple Communications decision is not without some limitations. For example, Purple Communications only applies to employees who have been granted access to company email and does not apply to non-employee third parties. The issue of third party access to employers' email systems will likely be addressed in the near future. Further, the nonbusiness-related communications must be made during non-working time only and cannot disrupt work productivity. Although the decision will almost certainly be appealed, employers should review their policies in light of the ruling in Purple Communications. The Board opined that a blanket policy prohibiting all nonbusiness-related email communication might be permissible under this newly established precedent if the employer can show that "special circumstances" exist making a total ban "necessary to maintain production or discipline." While the opinion fails to elaborate on what those "special circumstances" may be, it does say that "it will be the rare case where special circumstances justify a total ban." Thus, employers should be careful when adopting a broad ban on nonbusiness-related emails. The Board remanded the case back to the Administrative Law Judge for a determination on Purple Communications' policy under the new test. The Purple Communications decision is intended to be applied retroactively to all similar cases pending before the NLRB.