In a 3-2 decision divided along party lines, the National Labor Relations Board has ruled that employees have a presumptive right to use their employers’ email systems during non-working time to discuss unionization and the terms and conditions of their employment.  In so holding, a three-member majority of the Board explicitly overruled the Board’s Bush-era 2007 Register Guard decision in order to make “[n]ational labor policy . . . responsive to the enormous technological changes that are taking place in our society.”  We explore the NLRB’s controversial decision below.

Background

In Purple Communications, Inc., the employer, a sign language interpretation service provider, permitted its employees to use its electronic systems, including its email systems, “for business purposes only,” and strictly prohibited them from using email to communicate with organizations that had “no professional or business affiliation with the Company” and from “sending uninvited email of a personal nature.”

The Communications Workers of America, Inc. AFL-CIO sought to represent Purple Communications’ interpreters at several of the company’s call centers.  After it lost elections at two of those call centers, the union filed an unfair labor practice charge against Purple Communications arguing that its electronic communications policy violated the interpreters’ right under Section 7 of the National Labor Relations Act to engage in protected concerted activity.

The administrative law judge dismissed the charge by citing (and refusing to overrule) the Board’s 2007 Register Guard decision, which held that employees have no statutory right to use an employer’s email system for Section 7 purposes.  The union appealed and the Board invited the parties (and others) to file briefs on several issues, including whether it should overrule the Register Guard decision and, if so, what standard it should apply.

The Board’s Decision

You know where this is going: The Board reversed course, explicitly overruling Register Guard.  That decision, it said, generally failed to account for the “changing patterns of industrial life,” and specifically (i) provided too much weight to employer property rights over employee Section 7 rights, (ii) “inexplicably failed to perceive the importance of email as a means by which employees engage in protected communications,” and (iii) overvalued the Board’s earlier employer equipment use decisions.  Instead, it held that employees have a presumptive right to use employer-provided email systems during non-working time to engage in Section 7-protected communications.

The Board said it was not creating a “new” statutory right; rather it was just addressing a preexisting right in a new context.  In reaching its decision and applying this new standard, the Board cited to Supreme Court precedent stating that the effective exercise of an employee’s Section 7 rights “necessarily encompasses the right effectively to communicate with one another regarding self-organization at the jobsite.”  Email, it found, allows employees to effectively exercise that right in the workplace, especially as it is the most pervasive form of communication in the business world.  In other words, the Board said, email has effectively become a “natural gathering place” for employees who “share common interest” and “seek to persuade fellow workers in matters affecting their union organizational life and others matters related to their status as employees.”

The Board also went out of its way to distinguish email systems from other employer-provided systems (like copy machines and telephones) in which employees do not have a right to access for Section 7 purposes, finding that an email system’s “flexibility and capacity make competing demands on its use considerably less of an issue than earlier forms of communications equipment the Board has addressed” and any additional costs to employers in maintaining those email systems were insignificant.  It also wasn’t persuaded by the fact that employees may have alternative means of effectively communicating in the workplace (i.e. by using Facebook, Twitter, personal email accounts, or even through simple face-to-face meetings); what matters instead is whether the employer has “special circumstances” to justify a ban on communication at a particular type of location – even a virtual location like over an email system.

At the same time, the Board said it was aware of an employer’s legitimate interest in managing its business and tried to narrow its decision in three ways.  First, this presumptive right to email is only permitted during “non-working time”.  Second, its ruling only applies to those employees to whom employers have provided e-mail access.  Third, an employer may still institute a total ban on non-work related email use by demonstrating the above-mentioned “special circumstances” that make the ban “necessary to maintain production and discipline.”  However, the Board also noted that it would be a “rare case” where a total ban is justified.  In the normal case, where the employer cannot justify a total ban, it still may place certain controls over its email system, provided those controls are uniform, consistently enforced, and necessary to maintain production and discipline.

Did the Board Get This Right?

Together, the majority and two dissenting opinions span 60 pages and include more than 200 footnotes, and certainly give their readers a lot to digest.  In our view the dissenting opinions have the better of the argument, and the majority’s new rule is not really workable in its administration.

First, like the two dissenting Board members, we were troubled by the majority’s apparent failure to tackle the working and non-working time distinction sufficiently.  The Board’s new email access rule applies to “non-working” time only.  That seems reasonable enough until you start to think about it.  How does that work exactly in today’s modern day workplace? – A question that both dissenters asked and asked well.  Email access generally occurs during working time hours only; otherwise, why are you on the email system?  And even if you have access to email during an employer-mandated break, and you send an email during that break, the recipient could receive and read it during their working time hours.  Could an employer fire the recipient for doing so, or would that be unlawful retaliation under the NLRA?  As one dissenter said: “[t]he technology of email does not respect the ‘working time’/‘break time’ boundary” and the majority, which consistently claimed it was accounting for changing patterns of industrial life failed to acknowledge this modern workplace reality.

Second, the decision fails to provide clear guidance to employers who monitor their employees’ email use.  On one hand, the Board said that nothing prevents an employer from continuing to inform its workforce that it owns the email systems, and that therefore employees have no expectation of privacy regarding their emails.  On the other hand though, the Board said that employers cannot focus their monitoring efforts on protected conduct, including by increasing monitoring during an organizational campaign or by focusing on certain types of protected conduct or on known union activists, or even create an impression that it is doing this.  Think about that for a second.  You supposedly have the right to review your employees’ emails except when you don’t.  And employees supposedly have no expectation of privacy except when they do.  Once again, how does this work exactly?

Are employers really supposed to engage in wholesale random monitoring of their entire workforce to determine whether certain employees are emailing during working time?  That is not a realistic option for most employers, especially from a cost perspective.  And even if they do that, how are they supposed to easily tell if an employee is violating the rule given that the working time/non-working distinction doesn’t exist in many workplaces as it relates to email use?  Or if an employer suspects that an employee is emailing during working time (let’s say the person is a known union activist in the midst of an organizing campaign), will the very act of reviewing that employee’s emails violate the NLRA?  Further, will it violate the Act to have a policy reserving the Company’s right to review its employees’ emails at any time for any reason?  Or will such a policy create an impression that the employer is unlawfully monitoring its employees’ Section 7-related emails?  The majority wouldn’t answer any of these questions opting instead for a “don’t worry, employers are well-equipped to figure this all out” approach.

Third, we do not understand why the Board so casually dismissed the idea that its decision will prove costly to employers.  In a footnote, the majority said that the dissent was “simply incorrect” to say that the rule effectively requires employers to pay employees to read and write Section 7-related emails, but it didn’t explain the basis for its disagreement.

The majority also brushed aside the dissent’s concerns that this rule will negatively impact employee productivity because the rule only applies to non-working time “for which there is, by definition, no expectation of employee productivity.”  Yet, just one paragraph earlier and in the very next paragraph of the footnote, the majority acknowledged that this rule would result in Section 7 emailing during working time.  Thus, likely sensing that this argument didn’t necessarily “hold water,” as one dissenter noted, the Board said that if an employee receives a Section 7-related email during working time, he or she can simply “delete” it – as if the time spent reviewing that email and deciding what to do about it never happened or as if that is how the typical employee would react.  Of course, this argument also didn’t account for the employee that affirmatively drafts and sends Section 7-related emails during working time.

And finally, the majority said that many employers permit use of work email for personal reasons and “the sky has not fallen.”  Not only does that set the bar quite high, but it is also entirely unsubstantiated and certainly not true for every employer.  There are legitimate business reasons why certain employers prohibit all non-business use of their emails systems.  A costly drop in employee productivity is one of those reasons and we do not believe that the majority should have dismissed this concern so casually.  Employees will email about the terms and conditions of their employment – they do it all the time – and now employers will have to pay for it.  Saying that this conclusion is “simply incorrect” is, well, simply incorrect.

What this Decision Means for Employers

Here are a few takeaways:

• Employers Still Maintain At Least Some Control Over Their Email Systems.  The small bit of good news (if there is good news from this decision) is that it does not require an employer to provide email access to its employees; indeed an employer may limit which employees have access to its email systems and when they have access to those systems.  Further, nothing requires employers to store Section 7-related messages longer than other messages or from deleting these messages with other messages consistent with their record-retention policies.

• The Decision Implies that the Board Would Apply This Rule to Other Modern-Day Employer-Provided Communications Systems.  While the Board did not expressly extend its holding to other employer-provided systems that allow for communication (i.e. instant messaging or texting systems, or employer social media accounts), it did say that they “may ultimately be subject to a similar analysis.”  Given the majority’s analysis in Purple Communications, we are hard-pressed to see how the Board wouldn’t reach the same result.  Similarly, the Board also declined to decide whether it would apply this rule to an employee’s Section 7-related use of an employer’s telephone system.  The Board did note, however, that most employers now use more “sophisticated digital telephone systems,” perhaps foreshadowing its view that such “sophisticated” telephone systems should be treated like email.

• While This is Not the Final Word on this Issue, Employers Should Consider Revising Their Relevant Policies and Procedures Accordingly.  We expect that this issue will reach the courts and, if the Board’s decision is upheld, a healthy amount of litigation will follow testing the contours of this new rule.  But while this plays out, employers should consider revisiting their existing electronic communications policies to ensure at a minimum that they do not restrict employees’ use of company email to “business purposes only” or forbid employees’ use of their company email accounts to contact outside organizations, while installing other controls in those policies to ensure against excessive or inappropriate personal use.  Employers should also consider addressing whether and how to revise their existing email monitoring and retention policies and procedures.  As the New Year rolls in, now is as good a time as any to address these issues.