Bad Outlook: NLRB Rules That Employers Must Surrender Email Systems To Employees

On December 11, 2014, in a radical departure from settled National Labor Relations Board (the Board or NLRB) precedent, a sharply divided NLRB ruled in a 3-2 decision that a policy limiting the use of an employee's work email to work-only purposes violated the National Labor Relations Act (the Act or NLRA). Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014). If not overturned on appeal, this decision will have a major impact on how employers must draft — and enforce — electronic communications policies so as not to risk running afoul of the Act.

Factual Background

Purple Communications, Inc. (Purple or the Company) provides sign-language interpretation services. It employs interpreters at 16 call centers nationwide. Purple assigns its interpreters individual email accounts on its corporate email system, and the employees use those accounts every day that they are at work. They are able to access their Company email accounts on the computers at their workstations, as well as on computers in the call centers' break areas — and on their personal computers and smartphones.

Since June 2012, Purple has maintained an employee handbook with the following electronic communications policy (the Policy):

Computers, laptops, internet access, voicemail, electronic mail (email), Blackberry, cellular telephones and/or other Company equipment is provided and maintained by the [sic] Purple to facilitate Company business. All information and messages stored, sent, and received on these systems are the sole and exclusive property of the Company, regardless of the author or recipient. All such equipment and access should be used for business purposes only.

. . . Prohibited activities Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other Company equipment in connection with any of the following activities: . . . 2. Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company . . . 5. Sending uninvited email of a personal nature.

In 2012, the Communications Workers of America (the Union) filed petitions to represent the interpreters that resulted in elections at seven of Purple's call centers. The Union filed objections to the results of the elections at two of the call centers, including an objection that the Policy interfered with the interpreters' freedom of choice in the election under Section 7 of the NLRA, and was thus an unfair...