In a closely watched decision, the National Labor Relations Board (the Board) ruled today that workers must be permitted to use their employers’ e-mail systems for union organizing activity and all other communications about workplace conditions protected by the National Labor Relations Act (the Act) during nonworking time, if the employees otherwise have access to those systems. In doing so, the Board reversed its own 2007 ruling in Register Guard. While this decision was not unexpected, it will likely require all employers to immediately reevaluate the restrictions they place on employee use of their e-mail systems.  

Purple Communications Inc. presented the typical practice of an employer assigning its workers individual e-mail accounts on an e-mail system created and maintained by the employer for business purposes. Employees used their assigned e-mail accounts every day at work and were able to access them on the computers at their workstations, as well as on other computers in the employer’s place of business, their personal computers, and their smartphones.

After it lost a representation election, the Communications Workers of America (CWA) filed objections to pre-election conduct. These objections included a claim that the employer interfered with employees’ exercise of the right to engage in concerted activities when it prohibited the use of its e-mail system for anything other than business purposes and prohibited the system’s use for “engaging in activities on behalf of organizations or persons with no professional or business affiliation with the company.” 

An Administrative Law Judge who reviewed the CWA’s claims ruled for the employer in part, relying on the Bush-era Board’s Register Guard decision. There, the Board held that “‘employees have no statutory right to use the Employer’s e-mail system for Section 7 purposes’ and, therefore, that an employer does not violate the Act by maintaining a prohibition on employee use of its e-mail system for ‘non-job-related solicitations,’” so long as such a ban is not applied discriminatorily. The CWA and General Counsel appealed to the Board, which ruled in their favor and explicitly overruled Register Guard.

The Board identified what it called the “twin premises” of Register Guard: (1) “that e-mail systems are the equivalent of other employer communications-related equipment, including bulletin boards, copy machines, public address systems, and telephones,” and (2) that employers are free to ban any nonbusiness-related use of such equipment by employees—and deemed each one incorrect. Regarding the first premise, the Board found that Register Guard “inexplicably failed to perceive the importance of e-mail as a means by which employees engage in protected communications, an importance,” the Board further pointed out, “that has increased dramatically” since 2007. To the second, the Board replied that Register Guard undervalued employees’ rights to communicate in the workplace, as compared to employers’ rights to maintain control over the systems and equipment they provide.

Instead, the Board found employees’ rights to communicate in the workplace are “central” to their rights under the Act. For example, it noted, bans on oral employee communication during nonworking time must be justified by “special circumstances.” In today’s world, e-mail is much more like oral communication than other modes of communication requiring use of employer equipment. Indeed, according to the Board, the ever-increasing percentage of the typical employee’s day spent using e-mail, and other emerging trends such as the growth of teleworking arrangements, makes e-mail a “‘natural gathering place,’ pervasively used for employee-to-employee communications.”

Based on this understanding, the Board devised a new analytical framework that it plans to use in future cases concerning employees’ use of employer-provided e-mail systems. Referencing its decisions concerning oral communication, the Board found that employer restrictions on employees’ use of e-mail during nonworking time will be presumptively invalid. An employer may rebut that presumption by demonstrating the existence of special circumstances necessary to maintain production or discipline, but restrictions based on such circumstances may be no more restrictive than necessary to protect the employer’s interests.  

Board Members Philip A. Miscimarra and Harry I. Johnson III each authored lengthy dissents. Among other points, they took issue with the Board’s characterization of e-mail via an employer-maintained system as akin to oral communications that take place during nonworking time and the notion that employees barred from using an employer’s e-mail for nonbusiness purposes will have no other means available to them for exercising rights protected by the Act. Member Johnson sharply criticized the concept that e-mail communications are like “face-to-face ‘water cooler’ or ‘break room’ communications that are limited by space and time” and that take place between employees outside of the workplace when they are not working.

All employers that permit their workers to use their e-mail systems (which is almost everyone) must take note of the Board’s decision. Crucially, this case is not limited to union activity only. The Board has taken an expansive view of the types of workplace conduct that is protected by the Act, such as complaints about supervisors and co-workers, sexual harassment issues, safety concerns, and wage and hour disputes. This new rule will apply to all of those communications as well. While it was not unexpected, the decision requires all employers to reconsider their policies regarding employee use of e-mail.

Attorneys in Ballard Spahr’s Labor and Employment Group routinely assist employers with policy development and review and NLRA compliance. If you have questions on the Board’s ruling, please contact Steven W. Suflas at 856.761.3466 or suflas@ballardspahr.com, Christopher T. Cognato at 215.864.8612 or cognatoc@ballardspahr.com, or the member of the Group with whom you work.

 


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