National Labor Relations Board Permits Employees To Use Workplace Email Systems For Union Activity

In a landmark 3-2 decision, the National Labor Relations Board ("NLRB" or "Board") reversed its own precedent and found that employees now have a presumptive right to use their employer's email system to engage in communications relating to concerted activity protected by Section 7 of the National Labor Relations Act—including union organizing—during nonworking time. Purple Communications, Inc., 361 NLRB No. 126 (Dec. 11, 2014). According to the Board, an employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting employee rights, although the Board stated that these exceptions will be "rare." The ruling is the latest pro-union decision from the Board, and carries significant consequences for employers everywhere because of the importance of workplace email and the prevalence of policies restricting the use of business email for nonwork purposes.

The NLRB previously held in Register Guard, 351 NLRB 1110 (2007), that an employer may prohibit nonwork-related use of its email system, so long as the employer does not discriminate against concerted activity. In Purple Communications, the Board considered a policy that was lawful under Register Guard and prohibited employees from using "the computer, internet, voicemail, and email systems . . . in connection with . . . activities on behalf of organizations or persons with no professional or business affiliation with the Company" or from "sending uninvited email of a personal nature." The Board overruled Register Guard and found that the employer's policy was illegal under the National Labor Relations Act. In doing so, the Board primarily relied on an almost 70-year-old Supreme Court case, Republic Aviation, 324 U.S. 793 (1945), which found that employees had a right to solicit one another for Section 7 purposes (including union organizing) on nonworking time, absent special circumstances. The Board found that this same rule applied to employer email systems, so that employees can presumptively use email for Section 7 purposes on nonworking time, "absent a particularized showing of special circumstances regarding the employer's need to maintain production and discipline."

The Board emphasized that the special circumstances exception to justify a complete ban on nonwork email use "will be the rare case." The Board did find that employers are still free to implement and enforce uniform and consistent controls...