Use of Employer’s Email System for Protected Activities

Until late 2014, employers thought that they owned their email systems and could limit their use to company business. However, a divided National Labor Relations Board (NLRB) ruled “not so.”

​Read about a new 2015 court case.

In Purple Communications, the NLRB ruled that employees who have access to an employer’s email system as part of their job generally may, during non-working time, use the email system to communicate about wages, hours, working conditions and union issues. The NLRB reached this conclusion notwithstanding the fact that Purple Communications has a rule providing that its email system was to be used for “business purposes only.” Specifically, the NLRB ruled that employees with access to company email can use company email systems for union organization and Section 7 protected activities.1

It is expected that the NLRB’s ruling will be challenged in the federal courts.

The Purple Communications ruling overturned the NLRB’s 2007 decision in Register Guard, which held that employees have no statutory rights to use their employer’s email systems for labor organization purposes or discussions about wages or other workplace issues.2

The NLRB held that Section 7 statutorily protected communications (e.g., communications about labor organizations, wages or other workplace issues) between employees on nonworking time must be permitted by employers that have chosen to provide employees email accounts hosted on the employer’s email servers.

In the ruling, the NLRB stated that Register Guard initially got the issue wrong because it undervalued employees’ Section 7 rights and placed too much emphasis on employers’ property rights. Additionally, the majority opined, Register Guard incorrectly analogized company email to company-related equipment (e.g., bulletin boards, copy machines, public address systems, etc.).

The NLRB previously determined in an unrelated case that employers could place restrictions on company-related equipment, given its physical size and content limitations. But, for purposes of the current case, the NLRB concluded that this analogy “inexplicably failed to perceive the importance of email as a means by which employees engage in protected communications.”

Moreover, the majority noted that since Register Guard was decided seven years ago, the importance of email as a means for communication has only increased, further intensifying the error of the Register Guard decision.

The NLRB offered some limitations to its ruling. The decision:

  • Applies only to employees who already have been granted access to an employer’s email system in the course of their work. Accordingly, the ruling does not require employers to provide employees access to the employer’s email system in the first place.
  • Is limited to allowing access only during non-working time. Employers can still take measures to ensure productive working time — as long as the measures are applied uniformly and consistently.
  • Does not prevent employers from being able to monitor computer and email systems for legitimate management reasons, such as ensuring productivity, and making sure email is not being used to harass or disseminate confidential information, as long as doing so fell within the scope of its email system monitoring policies. This effectively means that an employer may not increase its monitoring during a labor “organizational campaign” or “focus its monitoring efforts on protected conduct or union activists” or otherwise enhance their monitoring efforts to stymie protected activity. But, employers may continue to tell their employees that they monitor, or at least reserve the right to monitor, computer and email use for legitimate business reasons. Further, the ruling does not change the general rule that employees have no expectation of privacy when they utilize their employer’s email systems. Thus, even though employees’ use of their employer’s email systems for Section 7 purposes is now protected, employers can still monitor their employees’ use of the email system and also advise employees that they are doing just that.
  • Does not require employers to allow non-employees, such as union organizers, access an employer’s email system.
  • Allows employers to ban all non-work-related use of email — including Section 7 email use on non-working time — if the employers can demonstrate that special circumstances make the ban necessary to maintain “production or discipline.” Unfortunately, the NLRB stated that the circumstances in which a ban would be justifiable would be “rare.” Absent a complete ban, employers may still be able to place uniformly applied controls on the email systems to maintain production and discipline.
  • Allows employers to establish restrictions that would interfere with the email system’s efficient functioning, such as prohibiting large attachments or audio/video clips.

Along a similar vein, in Dalton School, drama teacher David Brune emailed other faculty members and took exception to the way the school handled the production of a play. The email also accused the head of the school of failing to be “upstanding, moral, considerate, much less intelligent or wise.” When the administration learned of the email, Brune was fired.

After Brune’s filing of an unfair labor practice charge with the NLRB, the ALJ ruled that the school violated Section 8(a)(1) of the Act by discharging Brune for engaging in concerted protected activity. Specifically, similar to the decision in Purple Communications, the ALJ found that Brune used the company system to discuss his “working conditions” and accordingly held that Brune’s email was “clearly protected concerted activity” because it was “intended to induce group action.” The ALJ determined that the email was sufficiently related to terms and conditions of employment as to render its contents protected by Section 7 of the Act.3

In light of these decisions, employers will want to review their email system policies and consider whether they inhibit employees’ rights to discuss wages, hours, working conditions and union issues.

Legal References

1. Purple Communications, 361 NLRB No. 126 (2014)

2. Register Guard, 351 NLRB 1110 (2007); Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009)

3. Dalton School Inc. and David Brune, NLRB Div. of Judges, No. 2-CA-138611 (June 1, 2015)