NLRB Reverses Itself: Employer Email Systems Now Can be Used by Employees for Union-Related Communications

In 2007, the National Labor Relations Board (NLRB) held in its Register Guard decision (decided 3-2) that an employer was within its right to manage its property and prohibit use of its email systems for non-business related purposes, including union organizing.  On December 11, 2014, in a 3-2 decision, the NLRB took a “180” and held in the Purple Communications case that its 2007 decision was wrong and such use is permitted under the National Labor Relations Act.  

Purple Communications’ email policy prohibited its email system to be used for “engaging in activities on behalf of persons with no professional or business affiliation with the Company.”  That policy appeared to be consistent with the Register Guard rule, per the decision of an administrative law judge.  That decision was appealed to the Board, and the Board took that opportunity to overrule the precedent applied by the judge.

In today’s ruling, the Board 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 presumptively be permitted by employers who have chosen to give employees access to their email systems."  Email, according to the Board, is an important means of employee communications, and by failing to appreciate this reality, it concluded that the Register Guard Board failed to “adapt the Act to the changing patterns of industrial life.”

Thus, once an employer allows employees to use its email system in the course of their work, it cannot proscribe employees from using the email during non-work time relating union and other non-work matters.  An employer may, however, completely ban non-work use of its email system, but only “by demonstrating that special circumstances make the ban necessary to maintain production or discipline.”  The Board also stated that, if there is not a total ban, an employer may still “apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.”  The case did not address email communications by non-employees.

It is too early to tell if the decision will be appealed.  What’s clear, though, is that the recent trend at the NLRB to strike down employer efforts to restrict use of technology and social media is alive and well, and unions are being given more tools to facilitate their organizing efforts.  Significantly, under this decision it also is possible that employees could use employer email systems to generate interest in bringing lawsuits against their employers. 

This is an evolving area of the law, and employers – both unionized and non-unionized – should, with the assistance of counsel, scrutinize their policies so that they are less likely to be construed by the NLRB as limiting unionized and non-unionized employees in their statutory right to engage in concerted activity.  The lines being drawn by the NLRB continue to shift, and so this task is particularly challenging.

Further, while this case only pertains to private sector employers, those in the public sector should consider adapting to the NLRB’s precedent since state labor relations agencies often adopt federal precedent as the standards applicable to public sector employees.

To learn more, please contact the author of this alert, Robert A. Boonin (313-568-6707) or James Hermon (313-568-6540), or your Dykema relationship attorney.