Expanding the Water Cooler: Implications of the NLRB’s Reversal on Employee Use of EmailJanuary 15, 2015
As mentioned in our December 12, 2014 alert, the National Labor Relations Board finally announced its much-anticipated decision in Purple Communications, Inc. (Cases 21-CA-095151, 21-RC-091531, and 21-RC-091584). Articulating a change in direction that potentially affects millions of workers, the Board overturned a seven-year precedent related to the right of employees to use their employers' email systems for non-business purposes. When placed in context with other recent rulings by the Board, the Purple decision could have considerable implications for all private-sector employers.
The New Rule
In a 3-2 decision, the Board held that employees have a right to use their employer's email system during non-work time to engage in communications protected by Section 7 of the National Labor Relations Act.
The decision overturned the Board's earlier decision in Register Guard that held an employer could lawfully prohibit employee use of its email system for non-job-related solicitations, including union communications. In the Register Guard decision, the Board determined that an email system was analogous to other employer-owned equipment and therefore an employer could maintain a blanket prohibition on non-work use of that system.
In overruling Register Guard, the Board asserted that email was now the modern-day "water cooler" and that employees should have a presumptive right to communicate in that type of space. Finding that technology had replaced face-to-face interactions and that employees increasingly used email as a primary mode of communication, the Board concluded that email had become the "natural gathering place" for non-work-related communication and should be protected under the NLRA.
Certain Email Restrictions Still Permissible
Perhaps recognizing the sweeping nature of the ruling, the Board attempted to provide limitations on the Purple decision:
- The new rule only applies to employees who have already been given access to their employer's email system in the course of their work duties
- The new rule does not apply to email access by non-employees or to other type of electronic communication systems
- Employer may justify a total ban on non-work use of email by demonstrating special circumstances that make a ban necessary to maintain production or discipline
- Employer may apply uniform and consistently enforced restrictions over certain uses of its email system to the extent such restrictions are necessary to maintain production or discipline
- Employer may continue to monitor its email system for legitimate management reasons, including productivity and prevention of activities that could give rise to employer liability (e.g., harassment)
Although the Board identified these limitations, the Board also made explicit in its ruling that "it will be the rare case where special circumstances justify a total ban on non-work email use by employees." Additionally, "an employer contending that special circumstances justify a particular restriction must demonstrate the connection between the interest it asserts and the restriction."
In other words, the current Board appears to be signaling that it would reject all but the most carefully tailored restrictions on employee email use.
Application beyond Unions
Regardless of whether they are unionized, all private-sector employees have statutory rights under the NLRA to engage in "protected, concerted activity" (i.e., to act together to try to improve pay and working conditions or to fix job-related problems). If an employer interferes with these protected rights, that employer is in potential violation of the NLRA and subject to possible legal action.
As evidenced by several recent rulings involving social media and workplace conduct policies, the NLRB is aggressively asserting and in some respects attempting to extend its jurisdictional reach over non-unionized employers. There is little reason to think that the new email rule announced in the Purple decision would not be applied by the current Board in the same aggressive manner.
The Purple decision should be read in the broader context of how the Board is expanding protections under the NLRA to more and more workplaces, regardless of whether a union is involved. By declaring email communication to be the new "water cooler," the Board is extending Section 7 protections to a wide-range of communications that have traditionally been considered inappropriate.
For instance, an employee uses the company email system to complain to his coworkers about his immediate supervisor and refers to the supervisor in a derogatory manner. In years past, the employer may have disciplined the employee for insubordination, violation of its code of conduct and improper email use. After thePurple decision and other recent NLRB rulings, that same communication might be protected from discipline under the NLRA.
Politics as Usual
The divided decision in Purple Communications appears to have been a party-line vote, with the three Democrats on the Board comprising the majority. Lengthy dissents filed separately by the two Republican members of the Board only highlight the partisan nature of the ruling. Moreover, the Board allowed a "who's who" of outside labor and business entities to file amici briefs in the case, including AFL-CIO, SEIU, and the U.S. Chamber of Commerce.
Given a split decision along party lines, the involvement of powerful political organizations, and the practical importance of the holding, many observers believe the Board's decision is headed to a federal appeals court for review and may even end up before the Supreme Court.
Despite the likelihood of an appeal, employers would be wise to act now and ensure that their interests remain protected in light of the Board's recent actions. Employers should review their current email policies (including monitoring of and limitations on employee use) for compliance with the Purple decision.
If you have any questions regarding how this case may affect your employment policies and practices or whether special circumstances may justify restrictions on non-work email use by your employees, please contact one of the Lewis Rice lawyers listed below.
This Alert provides a summary of the Purple decision and is not intended to be construed as legal advice for any particular fact situation.