My daughter has a book called “Lilly’s Purple Plastic Purse,” that stars a young mouse who gets a brand new purse, filled with coins, as a gift. She brings it to school and cannot stop talking about it, disrupting the classroom in the process. Her mean teacher, Mr. Slinger, takes the purse to prevent Lilly from talking about it during the school day. Fast forward 15 years – if Lilly were working for ABC Company and used her company email to both gush about her new designer purse and lament about how she hasn’t had a raise in 5 years (“maybe we should form a union”), until December 11, 2014, her employer could prevent her from using her work email to initiate such discussions, whether she chose to do so during work time or her break time. Now, however, the rules have changed.
On December 11, 2014, the NLRB issued its order in Purple Communications, Inc., 361 NLRB 26, reversing Register Guard, 351 NLRB 1110 (2007), the NLRB’s earlier position on an employer’s ability to ban employees from using work email for Section 7 activity.
Section 7 of the National Labor Relations Act grants employees the “right to …engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.” 29 U.S.C. 157. “Concerted activities” require communication. The central issue in Register Guard, and now, in Purple Communications, was whether employees have the right to use the employer’s email for Section 7 concerted activity.
In Register Guard, the NLRB held that employees do not have a statutory right to use an employer’s email system for non-job-related purposes. Register Guard allowed employers to ban use of email for Section 7 purposes, even without demonstrating any business justification, so long as the employer applied the ban evenly (that is, the employer could not ban use of email for union activities, but allow use of email for other nonjob-related purposes, i.e., raffle tickets being sold by employees’ kids). Register Guard reasoned that an employer’s email system is similar to employer-owned equipment such as copiers and bulletin boards and that employers have a right to ban employees’ use of that equipment for non-work purposes.
This all changed with the Purple Communications. The NLRB overruled Register Guard and held that employees who have been given access to the employer’s email system in the course of their work are entitled to use it to engage in statutorily protected discussions about the terms and conditions of their employment while on nonworking time. Employees are presumed to have this right, although the NLRB Order allows employers to rebut this presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights. While it will be unlikely that the NLRB will allow a total ban of non-work use of company email, the Order expressly allows employers to monitor email and put other controls in place to maintain production/discipline.
Employers should review handbook policies to ensure that they do not contradict the Purple Communications Order. Policies that prohibit employees from using email for union activities during non-work time are now objectionable.
Note, however, that the NLRB Order does not extend to other forms of electronic communications (social media) or to communications from third parties.
For questions regarding this recent change in NLRB rules for communication or other developments in employment law, please contact Kimberly H. Blankenship.