The National Labor Relations Board today overruled its Register Guard decision that generally prohibited employees from using their employer’s computers to engage in protected activity, and permitted employers to lawfully discipline employees for doing so.  This morning in Purple Communications, the sharply divided Board found that Register Guard was “incorrect in several significant respects,” and expanded employees’ existing rights to communicate in the workplace about their terms and conditions of employment to reach communications over employer e-mail systems as well.  Absent “special circumstances” justifying total bans on non-work use of e-mail, the Board’s new Purple Communications standard requires employers to accommodate employees’ use of e-mail for protected concerted activity, subject only to “uniform and consistently enforced controls” that are “necessary to maintain production and discipline.”  The decision, which applies retroactively to all cases pending before the Board, carries significant legal implications, and will require all employers to make some immediate policy changes.  However, the case may ultimately have fewer practical effects on employers than other recent reversals of NLRB precedent.

Background

Since 2012, Purple Communications had maintained an electronic communications policy that required that its electronic communications systems “should be used for business purposes only” and that employees were “strictly prohibited” from using those systems for a number of activities, including “[e]ngaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company” and “[s]ending uninvited e-mail of a personal nature.”  On October 24, 2013, an NLRB administrative law judge (ALJ) declined to find that the electronic communications policy was unlawful. On appeal, the Board seized the opportunity to issue a notice and invitation to parties and amici on continued vitality of the Register Guard precedent.  As we have indicated in prior alerts, Register Guard has been a prime target since the early days of the Obama administration, and was a priority for the current General Counsel.

The Board’s Purple Communications Decision

The Board criticized Register Guard as wrongly decided in three respects, echoing (and citing) some of the academic criticisms of the decision:

• Register Guard “undervalued employees’ core Section 7 right to communicate” and overvalued employers’ property rights;
• The decision “failed to perceive the importance of e-mail as a means by which employees engage in protected communications;” and
• The Register Guard majority “mistakenly placed more weight on the Board’s equipment decisions than those precedents can bear,” because none of those decisions “involved sophisticated networks designed to accommodate thousands of multiple, simultaneous, interactive exchanges.”

Accordingly, the Board’s Purple Communications majority adopted a new, more permissive standard that extends employees’ rights to communicate during non-working time about their working conditions to employer’s e-mail systems.  Member Miscimarra dissented, finding the majority’s standards “well intentioned” but “terribly suited to govern this very important area.”  Member Johnson contended that the majority had granted a “new right” that would “wreak havoc” on the principle that “working time is for work.”

The New Purple Communications Standard for Employee Access to E-mail

The Board’s new Purple Communications standard “presume[s] that employees who have access to employer e-mail systems have a right to use the e-mail system to engage in Section 7-protected communications on nonworking time.”  An employer may rebut that presumption by “demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.”  Notably, this right to use e-mail for protected concerted activity applies only to employees with e-mail access for work purposes, not to employees without e-mail access and not to “nonemployees who seek access to an employer’s property.”  Employers may continue “to monitor their computers and e-mail systems for legitimate management reasons, such as ensuring productivity and preventing e-mail use for purposes of harassment or other activities that could give rise to employer liability.”  The Board will apply the same standard to allegedly unlawful surveillance under the Act in electronic systems as it does in the bricks-and-mortar world.  The Board’s decision is silent about the impact on other electronic communications systems, though we would anticipate that the current Board would likely apply the same rationale to other messaging platforms, too.

Practical Impact for Employers

Notwithstanding some of the valid criticisms in the dissent, many employers have already found that total bans on non-work use of e-mail or the Internet are unrealistic and unworkable as a practical matter.  As such, employers have increasingly turned to policies that permit the limited and occasional use of employer electronic communications systems for personal reasons during non-working time to the extent that use does not impede productivity or job performance.  The Board’s decision makes adoption of similar policies, albeit with some additional modifications, essentially mandatory to minimize the risk of unfair labor practices.

Employers must immediately review and evaluate any work rules, handbooks, or policies related to electronic communications systems to ensure that they will withstand NLRB scrutiny.  In conducting this review, we can assist employers in adding language to comply with Purple Communications and to otherwise modify policies to provide context and examples to avoid having the Board construe as interfering with activities protected under the Act.