The National Labor Relations Board may be one of the government agencies pursuing the Obama Administration’s progressive agenda most aggressively. I wrote last August about the NLRB considering McDonald’s Corporation and its franchisees to be joint employers, and I wrote in September about the NLRB expanding the scope of “concerted activity” to cover individual employee claims.
On December 10, 2014, the NLRB ruled that employers could not adopt a policy limiting their employees’ use of work email systems for work purposes only. The Board said that work-only email policies limit employees’ rights to engage in protected concerted activities, because email systems are a good way to discuss working conditions. See Purple Communications, Inc., 361 NLRB No. 126 (2014). According to the Board, email is a “natural gathering place” where workers can discuss the terms and conditions of their employment.
This is a reversal of NLRB policy. In 2007, the Board had ruled that email policies forbidding personal use of employer email systems was acceptable. See Register Guard, 351 NLRB 1110 (2007). In Register Guard, the NLRB held that employees had no rights under the National Labor Relations Act to use employer email systems. So long as the company applied its work-only policy to all outside activities, and didn’t discriminate against unions, the policy was valid.
But after the Purple Communications decision, the Register Guard ruling is no longer good law. The majority in Purple Communications held 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 [in Register Guard] 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 Board in Purple Communications cited the Supreme Court in Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945), which said the Board must balance “the undisputed right of self-organization assured to employees” with “the equally undisputed right of employers to maintain discipline in their establishments.” Unfortunately, the NLRB in Purple Communications found that the balance fell with employees’ “core Section 7 right to communicate in the workplace about their terms and conditions of employment.”
The NLRB in Purple Communications did permit employers to place some controls on use of their email systems. First, employers do not have to give all employees email accounts, if not required for their jobs. In addition, employers can prohibit the use of company email systems for the discussion of non-work-related topics on work time, though this may be a hard limitation to police. Furthermore, employers can also regulate email use to maintain productivity and discipline, though enforcement of these regulations sounds like an invitation of unfair labor practices complaints. Although the Board did state that employers could demonstrate “special circumstances” to ban non-work use of email, it will be the rare situation that this Board would uphold as “special” enough.
The Purple Communications decision was, as one might expect, a 3-2 decision, with the Democratic appointees constituting the majority and the two Republican appointees wanting to abide by the earlier Register Guard decision. Board members Miscimarra and Johnson issued dissents arguing that the majority’s ruling was contrary to precedent, improperly burdened employer property rights, and violated the First Amendment by forcing companies to pay for speech that they do not support.
Unfortunately, the NLRB under the Obama Administration is creating new rights in favor of union organizers. Even where an employer has a nondiscriminatory policy, the Democratic majority believes that employees seeking to organize the workplace must be granted special access to employer-owned systems to communicate about possibly protected concerted activities.
Moreover, the Purple Communications decision is likely to be followed by more expansive NLRB rulings—on employees’ use of employer phone and other communications systems and on how far employers can go to read emails on their own system (might it become illegal surveillance?). Employers are required to monitor their email and other communications systems, for example, to be sure all relevant documents are produced during litigation. It is only a matter of time before some union sympathizer complains when his or her emails are produced and files an unfair labor practice complaint because the employer has done what it is legally mandated to do.
Union organizing through electronic communications is here to stay, and employers need to be ready. Unfortunately, the NLRB has just given employees a major victory in permitting them to use the employers’ own systems to organize. Unless the courts are prepared to overrule the Purple Communications ruling, it is a brave new world under the National Labor Relations Act.
For more on this decision, see:
NLRB’s decision in Purple Communications means employers must take a close look at policies restricting employee email use, by Hogan Lovells, Stanley J. Brown, Christine M. Burke , George W. Ingham and Dianne Milner, December 15 2014
What do you think of the NLRB’s Purple Communications decision?