NLRB Reverses Precedent and Holds Employees Have Right to Use Employers’ Email Systems for Protected Communication

Last week, the National Labor Relations Board issued an important decision, holding that employees have the right to utilize employer-owned email systems to communicate regarding the terms and conditions of their employment and other issues covered by the National Labor Relations Act, including concerted activities. Purple Communications, Inc. and Communications Workers of America, AFL-CIO (December 11, 2014).

This significant and much-anticipated decision overturned the precedent set out in Register Guard, 351 N.L.R.B. 1110 (2007), which held that employees did not have the right to use employer-owned systems for discussion of the terms and conditions of their employment.   This decision, while restricted to email only, emphasized the Board’s employee-friendly approach to navigating conflicts between employees’ communication rights and employer’s property rights in electronic communication of all types.  

The respondent in this case, Purple Communications, Inc., provides sign-language interpretation services.  Its employees conduct two-way video interpretation of telephone conversations between deaf or hard-of-hearing individuals and hearing individuals.  Although Purple Communications provides employees with access to its email system for this purpose, employees were prohibited from using email for “[e]ngaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company” or “[s]ending uninvited email of a personal nature.”  The employees and their union challenged these prohibitions before the Board.

The Board considered the rights of employees under Section 7 of the NLRA to communicate with one another using the employer-owned email system regarding the terms and conditions of their employment, including the right of self-organization.  In its analysis, the Board revisited Register Guard and found the majority analysis in that case to be “incorrect in several significant respects.”  The Board first found that the Register Guard opinion “undervalued employees’ core Section 7 right to communicate in the workplace about their terms and conditions of employment, while giving too much weight to employers’ property right” over their email systems.  Second, the Board found that Register Guard “inexplicably failed to perceive the importance of email as a means by which employees engage in protected communications, an importance that has increased dramatically during the 7 years since Register Guard.”  Finally, the Board found that Register Guard “placed more weight on the Board’s equipment decisions than those precedents can bear.”  Thus, the Board overruled Register Guard to the extent that it held that employees did not have the right to use their employer’s email systems for protected communication.

In arriving at its conclusion that employees are entitled to use employer-provided email systems for NLRA purposes, the Board recognized that employee communication in the workplace is central to their Section 7 rights, including the right to discuss the terms and conditions of their employment, because “it is the one place where [employees] clearly share common interests and where they traditionally seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.” (Internal citations omitted.)  The Board also recognized that workplace communication between employees now most commonly takes place over email and noted that “email has effectively become a ‘natural gathering place’ pervasively used for employee-to-employee conversations.”  The Board additionally found email to be materially different than other types of communications equipment (e.g., bulletin boards, copy machines, and public address systems) the Board considered in previous cases and declined to apply such precedent to the facts at hand.

The Board held “employees who have been given access to the employer’s email system in the course of their work are entitled to use the system to engage in statutorily protected discussions about their terms and conditions of employment while on nonworking time, absent a showing by the employer of special circumstances that justify specific restrictions.”  Thus, while employers are not required to give email access to employees that do not already have it, employers are required to permit employees with access to employer-owned email to use the system to discuss the terms and conditions of their employment.

Questions

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