Historically, the National Labor Relations Board (NLRB) stated in its 2007 Register Guard case that employees did not enjoy rights granted to them by Section 7 of the National Labor Relations Act in the context of using company e-mail. The Board concluded in a 3-2 decision that employees had no Section 7 rights to use company e-mail for communications protected by the NLRA.
Just recently, however, in the case of Purple Communications, Inc. v. Communications Workers of America (D. Cal.), the NLRB reversed an Administrative Law Judge ruling upholding a decision for the employer, thereby overturning Register Guard, and voted in another 3-2 decision stating that e-mail has become the “predominant means” of worker-to-worker communication and therefore it is “untenable to smother employees’ rights under a blanket rule that vindicates only the rights of employers.”
In Purple Communications, the company had adopted a work rule that limited employee use of the company’s e-mail systems to “business purposes only.” The NLRB ruling, in essence, says that stifling worker-to-worker e-mail communications is an unfair business practice suppressing concerted activity. Therefore, e-mail policies must be reviewed and amended to reflect this change preventing an absolute ban on non work-related e-mails.
The NLRB’s Purple Communications decision made a very narrow limitation on this ruling by stating that it applies only to employees who have already been granted access to the employers’ e-mail system, making it clear the Board does not require employers to provide such access. However, if access is provided to employees, the NLRB said that an employer may “justify a total ban on non-work use e-mail, including Section 7 use on nonworking time, only by demonstrating that special circumstances make the ban necessary to maintain production or discipline” (emphasis added). Of course, the NLRB failed to define what “special circumstances” might entail, and therefore the danger with the Purple Communications decision is that special circumstances will have to be defined on a case-by-case basis.
In short, an employer’s e-mail policies that previously prohibited all non-work use by employees should be reviewed and amended to provide that worker-to-worker e-mail should be focused on achieving the objectives of work, but that such policies do not inhibit or intend to violate any Section 7 NLRA rights.
For more information, or to discuss your company’s email policies or other employment practices or issues, please contact Brian L. Champion. Brian is a partner at Libby O’Brien Kingsley & Champion, LLC, where he practices primarily in the areas of civil litigation, employment law and business litigation.