email, nlrb, employer email, employer email policiesCompanies will need to revise their employee email policies following a ruling from the National Labor Relations Board (NLRB) (Purple Communications on December 11, 2014).

Specifically, in a 3-2 decision (three Democrats, two Republicans) held that Section 7 of the National Labor Relations Act allows,

… employee use of e-mail for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their e-mail systems …

Section 7 essentially protects the right of employees to unionize or take collective action.

Significantly, the Purple Communications ruling reversed a 2007 decision, Register-Guard, which had permitted employers to restrict e-mail use under those same Section 7 rights at issue in Purple Communications.

The basis for this reversal (other than the make-up of the NLRB) according to the majority opinion is that the prior Register-Guard opinion failed to “fully acknowledge the major role” email plays in employees’ workplace communications and because it gave too much weight to employers’ property rights (i.e., control over its technology systems).

With this change, employers need to understand that the NLRB will now “presume that employees who have rightful access to their employer’s email system in the course of their work have a right to use the email system to engage in Section 7-protected activity on nonworking time.” An employer may rebut this presumption if it demonstrates “special circumstances necessary to maintaining production or discipline justify restricting its employees’ rights.”  

Limitations under the Purple Communications Decision

The Purple Communications decision has limits according to the majority:

  1. It doesn’t require employers to provide access to e-mail where it has not chosen to do so;
  2. It permits a “total ban” on e-mail use during nonworking time if there are “special circumstances;” and
  3. It since it didn’t address e-mail use by nonemployees,
  4. It does not prohibit employees from sending large attachments or audio/video files, if the employer can demonstrate that they would interfere with the employer’s email systems.
  5. Significantly, nothing in the Purple Communications decision prevents an employer from monitoring company computers and email systems for legitimate management reasons. Such reasons include basic operational issues like ensuring productivity and preventing email misuse (think harassment or other misconduct), except the employer cannot implement a “special” monitoring program or policy that is out of the ordinary. This scenario would likely occur if an employer increased its monitoring during an organizational campaign or focused its monitoring efforts on protected conduct or union activists. 

The bottom line is that employers can’t stop their employees from using work e-mail during nonworking time. Therefore, employers should review their current policies applicable to employee email and technology in order to comply with this decision.