NLRB Overturns Register Guard and Holds Employees Have Presumptive Right to Use Employer Email for Section 7 Activities

On December 11, 2014, the National Labor Relations Board ("NLRB" or the "Board") issued its anticipated decision in Purple Communications, Inc., 361 NLRB No. 126 (Cases No. 21-CA-09151, 21-RC-091531, and 21-RC-091584). In a split decision with Members Miscimarra and Johnson dissenting, the 3–2 Board majority overturned its precedent in Register Guard, 351 NLRB 1110 (2007), enf'd in part, Guard Publishing v. NLRB, 571 F.3d 53 (D.C. Cir. 2009), "to the extent it holds that employees can have no statutory right to use their employer's email systems for Section 7 purposes." 361 NLRB No. 126 at slip op. 1. The decision is one of a number expected to be issued by the Board from now until December 16, 2014, when Board Member Nancy Schiffer's term expires.

In the decision, the Democratic Board majority held that "[c]onsistent with the purposes and policies of the Act and our obligation to accommodate the competing rights of employers and employees, we decide today that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems." Id.

The Board majority rejected the arguments raised by Purple Communications and numerous amici that it should uphold the decision in Register Guard, which protected employers' property rights by allowing them to impose nondiscriminatory restrictions on employer email systems. Indeed, Jones Day authored or coauthored three amicus briefs to the Board in support of Purple Communications, including those on behalf of The U.S. Chamber of Commerce of the United States of America, the American Hospital Association, and the HR Policy Association. Rejecting these arguments, the Board majority instead found the analysis in Register Guard was flawed because it "undervalued employees' core Section 7 right to communicate in the workplace about their terms and conditions of employment, while giving too much weight to employers' property rights," and "inexplicably failed to perceive the importance of email as a means by which employees engage in protected communications." Id. The majority also concluded that "email systems are different in material respects from the types of workplace equipment the Board has considered in the past" because "email's flexibility and capacity make competing demands on its use considerably less of an issue." Id. at 8.

The Board did limit its holding in significant ways for employers. Most importantly, the Board addressed only email communications systems, and not any other electronic communications systems. Also, the Board did not go so far as to hold that nonemployees have a right to access an employer's email system. Id. at 1, 14. The Board's holding applies only "to employees who have already been granted access to the employer's email system in the course of their work and does not require employers to provide such access." Id. at 1. Further, "an employer may justify a total ban on non-work use of email, including Section 7 use on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline." Id. "Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline." Id. However, "an employer contending that special circumstances justify a particular restriction must demonstrate the connection between the interest it asserts and the restrictions." Id. at 14.

Notably, the Board elected to apply the new policy retroactively and remanded the case to the administrative law judge to allow the parties "to introduce evidence relevant to a determination of the lawfulness of [Purple Communications's] electronic communications policy." Id. at 16-17.

Complying with the Board's decision likely will require significant changes in employer policies, including those involving solicitation, distribution, and email access. The Board's decision presents a host of concerns for employers that attempt to limit the use of email, including:

• Needing to police whether an employee was on work time when he or she drafted a Section 7-protected email;
• Drafting appropriate limits on the use of the email system (e.g., the size of messages and use of attachments) that are necessary to protect the integrity of the system; and
• Assessing the impact of the Board's decision on employer social media platforms and other forms of electronic communication systems in use at the workplace.

Employers are advised to examine their policies related to the use of email and seek legal advice on whether their policies comply with the Board's decision in Purple Communications. As we continue analyzing the Board's decision, we will follow up with additional commentary and recommendations for employers examining these issues and the impact this ruling may have on future Board decisions.

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Laura Jean Eichten, an associate in the New York Office, assisted in the preparation of this Alert.

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