On December 11, 2014, the National Labor Relations Board (“NLRB”) decided Purple Communications, 361 NLRB No. 126 (December 11, 2014), a case with potentially far-reaching consequences. Purple Communications overturned previous NLRB precedent to hold that an employer policy that bans employee use of employer e-mail for nonwork purposes violates employee rights to engage in protected concerted activity under Section 7 of the National Labor Relations Act (“NLRA”).

Specifically, the NLRB held that employee use of an employer’s e-mail system for communications protected by the NLRA and made on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their e-mail system. The Board stated, however, that its decision was “carefully limited.” First, it applies only to employees already granted access to e-mail. It does not require an employer to make e-mail available to employees who do not already have access to e-mail as part of their jobs.

Second, the decision allows employees to use employer e-mail systems for such communications only on their nonwork time. The NLRB acknowledged, however, that it may be difficult to monitor whether such use actually occurs during nonwork time.

Third, employers may justify a total ban on nonwork use of e-mail, if they can demonstrate some special circumstances that make such a ban necessary to maintain production or discipline. The NLRB did not specify what special circumstances might justify such a ban. The only example given was that an employer would have interest in protecting its e-mail system from damage or from overloads due to excessive use. An employer, however, would have to prove that the nonwork messages were causing the problem. Just stating there could be a problem will not suffice. The NLRB also noted that “the failure of a legitimate working-time restriction on nonwork email to resolve productivity concerns would seem to reflect larger management problems in the workplace – issues that would exist regardless of employees’ Section 7 rights and that, accordingly, should not be a basis to limit those rights.” Accordingly, it appears that overcoming the presumption of access will be very difficult for employers.

Fourth, in describing its decision as limited, the NLRB noted that the decision does not address e-mail access by nonemployees, and does not address the use of any other type of electronic communication system. This, of course, does not preclude the NLRB from ruling on these issues at another time.

The NLRB stated that its decision does not prevent employers from continuing to monitor their computers and e-mail systems, as long as the monitoring is for legitimate management reasons, such as ensuring productivity and preventing employees from using e-mail for harassment or for other activities that could result in employer liability. The NLRB stated that such monitoring would be lawful, as long as the employer does not take actions such as increasing its monitoring during an organizational campaign, or focusing monitoring efforts on protected conduct or union activities.

The NLRB further stated that employers may continue to advise employees that the employer monitors or reserves the right to monitor computer and e-mail activity for legitimate management reasons, and that employees have no expectation of privacy in their use of the employer’s e-mail system. The NLRB cautioned, however, that an employer that changes its monitoring practices in response to union activity or other protected concerted activity will violate the NLRA.

The NLRB noted that employers continue to be free to use their e-mail system to convey their view points to employees. It also noted that employers may expressly dissociate themselves from the view points expressed by users of their e-mail systems.

The Purple Communications decision will be applied retroactively by the NLRB.

What Does This Mean For You? Even if your workplace is not unionized, an e-mail policy with a blanket prohibition on nonwork e-mails will now be found by the NLRB to violate the law. You should review your computer and e-mail use policies and update them as necessary to delete such prohibitions, to ensure that the policies warn employees that the employer will monitor and that the employees have no expectation of privacy in these systems. You also should carefully review any discipline or terminations that are based on e-mail communications, to ensure that they are in accord with this decision.

If you have any questions about this case or any other employment or labor law issue, please contact S. Whitney Rahman at (717) 509-7237 or swr@blakingerthomas.com

This update should neither be construed as legal advice, nor as lobbying of any sort for or against any National Labor Relations Board rules or decisions.