The National Labor Relations Board ("Board") has ruled that employees who have been provided access by their employer to an employer-owned email system are presumptively entitled to use that email system to engage in Section 7 activities during non-working time. An employer can rebut this presumption only in "rare" cases where it is able to show that "special circumstances justify a total ban on non-work email use by employees." This decision marks a significant change in the Board's position. Compliance will require many employers to modify their current technology policies.

The Purple Communications, Inc. decision, issued December 11, 2014, overturns Register Guard, which previously held that employers could lawfully prohibit employees from using company-owned email systems for any "nonjob-related solicitations." The current Board reasoned that employee use of email would likely not decrease the employer's ability to simultaneously use the system for work-related matters as a result of ever-increasing server capacity and transmission speeds. It went on to state that the Register Guard decision was "badly flawed," and rejected its implication that employers' property rights trump employees' rights to communicate effectively in furtherance of their Section 7 rights.

Section 7 of the National Labor Relations Act ("Act") grants employees "the right to self-organization . . . and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection."   The Supreme Court has held that employees' rights under Section 7 "necessarily encompass the right effectively to communicate with one another regarding self-organization at the jobsite." Purple Communications, Inc. makes clear that this right will often extend to use of the Company's e-mail system, a change that could result in a significant expansion of the use of the employer's technology resources to the employer's detriment. Imagine employees planning/communicating a strike using the employer's own email.

Despite the seemingly sweeping nature of this holding, the Board claims that its decision is "a limited one." For instance, the Board explains that its decision encompasses only email use by employees; it does not reach any holding with respect to other types of communications systems or use of company-email by non-employees. The decision also permits employers to deny all access to its email system to employees, which would encompass both work-related and non-work related emails. Where an employer does permit access to its email system by employees, it may properly implement uniform and consistently applied restrictions, such as limitations on the size of email attachments, so long as the employer can demonstrate that prohibited attachments would "interfere with the email system's efficient functioning." 

The Board also recognizes that its decision does not preclude employers from enforcing policies whereby the employer is permitted to monitor use of its email system, so long as it does so only for "legitimate management reasons," such as to detect unlawful harassment or to ensure productivity. As long as management does not "do something out of the ordinary" in monitoring company email usage, it likely will not constitute unlawful surveillance under the Act.

In sum, following the Purple Communications decision, employers are effectively faced with two choices: (1) prohibit employees from any use of the employer's email system or (2) except where rare "special circumstances" justify a total ban on non-work related email, permit employees to use the email system for both work-related matters and non-work related issues during non-working periods.  In today's work environment, the first choice seems unlikely.

It is unclear how the federal courts will decide this case if appealed, but at the Board level, it is unlikely that employers will receive any reprieve, as the U.S. Senate on Monday, December 8, 2014, confirmed Lauren McFerran, a Democratic nominee, to succeed Nancy Schiffer as a Board Member, with her term to expire in December 2019. Ms. McFerran's confirmation ensures the Board will maintain a Democratic majority at least until August 27, 2016, when Kent Hirozawa's term expires.