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NLRB's Purple Presumption Leaves Employers Black and Blue by Giving Employees the Right to Use Email for Section 7 Communications

December 23, 2014

By Jennifer A. Sabovik

Two weeks ago, the National Labor Relations Board overruled its 2007 Register Guard decision and held that employees have a “statutory right to use their employer’s email systems for Section 7 purposes.”  See Purple Communications, Inc. and Communications Workers of America, AFL-CIO (December 11, 2014).  In flagging the decision for you, Bullard Law observed that this will force both union and non-union employers to allow employees who already have access to the workplace email system to use that system, on non-working time, for Section 7 communications, including email regarding union organizing.  In wresting control of the email system away from employers, this decision hands unions a powerful tool in their efforts to unionize workplaces. 

Today, Bullard Law follows its initial post with a more complete analysis of the Purple Communications decision. In Q&A style, we address ten key questions. 
 
  1. Which employers are impacted by this decision?
     
All private sector employers whose operations affect interstate commerce beyond a minimal level are subject to the National Labor Relations Act and the decisions of the five-member National Labor Relations Board, who interprets and applies the Act. In other words, virtually every private sector employer in the country will be impacted by this decision, even if its employees are not represented by a union.

Public-Sector employers are not covered by the Act, but public sector employers still should take note of the decision because state labor boards frequently adopt the decisions of the National Labor Relations Board. 
 
  1. Given that this decision also affects non-union employers, who may not be familiar with the National Labor Relations Act, explain what the Board means by “Section 7” purposes.

Section 7 of the Act grants “employees” the right to “self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities.” “Concerted” activity encompasses those circumstances where individual employees seek to initiate, induce, or prepare for group action as well as actions by individual employees bringing truly group complaints to the attention of management for the employees’ “mutual aid or protection.” An employee’s conduct is not “concerted” unless it is engaged in, with, or on authority of other employees. Just individually griping about some aspect of work, in email or social media, is not “concerted activity.”

Employers are not permitted to interfere with or coerce employees in the exercise of their Section 7 rights. Any employer who does so commits an “unfair labor practice” under Section 8(a)(1) of the Act and may be subjected to penalties by the National Labor Relations Board. Such penalties often include: rescinding unlawful work rules and any discipline issued pursuant to those rules, and posting and/or emailing a Notice to Employees; reinstatement; and the payment of backpay.
 
  1. How does the decision change employer control of workplace email?

Frankly the “change” in the law is more academic than practical. To be useful, and lawful, any policy regarding employee use of email requires employers to police their email systems to an extent they just don’t find practicable or, in most cases, possible. Purple Communications doesn’t change that – it really only changes the type of employee use of email that can be prohibited by employers.

Before Purple Communications, employers could adopt policies broadly prohibiting their employees from using email for all nonwork related purposes, including for Section 7 communications and, if those policies were uniformly adopted and enforced, the Board would presume not only that the policies themselves were lawful, but also that any adverse employment actions taken pursuant to the policies were lawful. This presumption was announced by the Board in its 2007 Register Guard decision and was based on the Board’s “settled principle that, absent discrimination, employees have no statutory right to use an employer’s equipment or media for Section 7 communication.”

In Purple Communications (the Purple Presumption), the Board reversed itself, overruled Register Guard, and flipped the presumption in favor of employees. The Board now presumes that employees who have already been given access to email as part of their jobs do have a statutory right to use their employer’s email system to engage in Section 7 communications during nonworking time.

After Purple Communications, employers can no longer adopt policies broadly prohibiting employees from using email for nonwork purposes, unless they can establish that such a total ban on using email for nonwork purposes is justified by “special circumstances necessary to maintain production or discipline.” Otherwise, they can only prohibit nonwork use during working time, and must allow employees who already have access to email to use it for Section 7 communications during nonworking time. 
 
  1. Can you give some examples of special circumstances?

Yes. The Board gave one example in its decision: “an employer’s interests in protecting its email system … from damage or from overloads due to excessive use.” Additional examples will come from future cases and will, as the Board noted, depend on the nature of each employer’s business.

But the Board made it clear that all employers will face an uphill, if not Sisyphian, battle in rebutting the Purple Presumption. The Board expects that “it will be the rare case where special circumstances justify a total ban on nonwork email use, and that “more typical cases” will be those in which “special circumstances do not justify a total ban.”

Even if an employer cannot establish special circumstances justifying its total ban on nonwork use of email the employer “may nonetheless apply uniform and consistently enforced controls” over its email system “to the extent that such controls are necessary to maintain production and discipline.” According to the Board, such uniform and consistently enforced controls (or “restrictions”) may include banning large attachments or audio/video segments if the employer can demonstrate that they would interfere with the email system’s efficient functioning.” 
 
  1. Are there any limits on employee use of the workplace email system?

Yes, there are several limits.

First, the Purple Presumption applies only to “employees,” which means that, as of now, employers do not have to grant access to their email systems to nonemployees, such as union representatives.

Second, it only applies to employees who already have access to email as part of their work. It does not, as of now, require employers to grant access to employees who do not otherwise have access to email.

Third, it only applies to employees’ “statutorily protected” communications. To be protected under the Act, employees’ email communications must be concerted and must not lose the Act’s protection. For guidance, employers should look to the Board’s ever-developing “social media” law. Like their posts on Facebook, YouTube, Twitter and other social media sites, employees’ emails must address work-related issues and share information about pay, benefits, and working conditions with coworkers. What they say must have some relation to group action, or seek to initiate, induce, or prepare for group action, or bring a group complaint to the attention of management. Just individually griping about some aspect of work in email will not be “concerted” activity, but the bar is quite low and it doesn’t take much more than saying “us” and “we” in the midst of an email that is otherwise full of “I think,” I do not agree,” and “I feel I should be paid,” as was the case in Hitachi Capital America Corp. and Virginia Kish, 361 NLRB No. 19 (Aug. 8, 2014).

Fourth, the Purple Presumption only applies to nonworking time, so employers may still ban employees from using email for nonwork purposes during working time. The Board generously acknowledged that “email use may be somewhat difficult to identify as occurring on working time or nonworking time,” but has not been so generous when it comes to identifying email use as constituting protected concerted activity. The burden, in both instances, is squarely on the employer who chooses to prohibit nonwork use during working time. The employer must not only police its system to discover and prevent instances of nonwork use during working time, it must also review the substance of employees’ nonwork emails and determine whether they constitute protected Section 7 communications. 
 
  1. Can employees use the workplace email system to communicate with recipients outside of the workplace (such as union reps)?

Probably. The Board’s decision does not directly address this question, but presumably employees would be permitted to use email for Section 7 communications with nonemployees, such as union representatives, particularly if employees are already using the email system to communicate with nonemployees. Employers can enforce uniform controls or restrictions on such communications if the employer can demonstrate the communications would interfere with the email system’s efficient functioning, and/or the uniform controls or restrictions are necessary to maintain production and discipline. 
 
  1. How does Purple Communications assist unions in their efforts to organize non-union workplaces?

If an employer’s employees are already using email as part of their jobs, there’s no doubt they have also been using it for personal reasons, including perhaps, communicating with union representatives. The Purple Presumption makes it moderately easier for employees and union representatives to communicate with one another because they will no longer fear adverse consequences for violating an employer’s email policy. 
 
  1. Does this decision allow employers to use their own email systems to counter union organizing efforts?

Yes. Just as an employer can use its own bulletin boards to communicate with its employees regarding union organizing efforts, it will still be able to use its email system to communicate with employees on this topic.

Just as with bulletin boards, if an employer allows its employees to use its email system for nonwork purposes, it must allow them to use it for communications regarding union’s activities, such as organizing campaigns. But this can be useful for employers. Just as postings on bulletin boards can give early warnings of an organizing campaign and allow employers to see what is being said by the union and its employees, so too can employees’ use of the email system. 
 
  1. Do employees who use email for union purposes have an expectation of privacy in that email and if so how does that work?

No, they do not, and the Board expressly addressed this issue, saying its decision “does not prevent employers from continuing, as many already do, to monitor their computers and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for purposes of harassment or other activities that could give rise to employer liability.” As the Board noted, “those who choose openly to engage in union activities at or near the employer’s premises cannot be heard to complain when management observes them. The Board has long held that management officials may observe public union activity without violating the Act so long as those officials do not ‘do something out of the ordinary.’” Out of the ordinary would, as always, include “increasing its monitoring during an organizational campaign or focusing its monitoring efforts on protected conduct or union activists.”

The Board even provided an explicit disclaimer for employers’ policies: the employer “reserves the right to monitor [its equipment] for legitimate management reasons and employees may have no expectation of privacy in their use of the [employer’s equipment].” 
 
  1. You refer to “equipment” but isn’t Purple Communications limited to email?

By its terms, yes, and the Board went to great lengths to distinguish email from other types of employer owned equipment that employers could lawfully ban employees from using, such as bulletin boards, copy machines, telephones, and public address systems. According to the Board all of this equipment “involves far more limited and finite resources,” and does not share the “flexibility,” “capacity,” and “multidimensional characteristics” of email. In the Board’s opinion, employees’ use of “email will rarely interfere with others’ use of the email system or add significant incremental usage costs, particularly in light of the enormous increases in transmission speed and server capacity.”

But the Board did leave open the door for an application of the Purple Presumption to other forms of employer equipment employees “regularly use in their work,” by saying that it ‘rejects the presumption that employees have no right to use such equipment for Section 7 purposes.” Then it footnoted its intention to apply the Purple Presumption to other forms of interactive communication,” such as instant messaging and texting, when and if the question is before them.

So in 2015 employers should expect to see the Board apply the Purple Presumption to any and all interactive communication equipment employees regularly use in their work, including telephone systems, pagers, lap tops, tablets, mobile phones, computers, instant messaging, internet access and, most ominously, employer’s social media accounts. (In footnote 70 the Board indicates it will apply the Purple Presumption to determine “what rights employees have to communicate via their employer’s social media accounts.”)
 

Bullard Law will continue to monitor these and other NLRB developments throughout 2015. Please feel free to contact us anytime with questions about these matters, or any other labor, employment or benefits issues of interest or concern to you.
 
 
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