NLRB Rethinking Stance on Employee Email Use

Board calls for briefs on whether to overturn Purple Communications — and how to address company systems besides email

The National Labor Relations Board now has another Obama-era decision in its crosshairs — this one dealing with restrictions that employers may lawfully impose on the use of the email systems they own.

In 2014, the NLRB determined it was unlawful for employers to ban their employees from using company email for non-work purposes, even in their off-time. The decision, Purple Communications, prompted employers — both unionized and not — to review their policies to ensure they weren’t running afoul of the National Labor Relations Act in the NLRB’s eyes.

But now the NLRB, which has a case before it that challenges the Purple Communications ruling, is asking for amicus briefs on whether it should shift its stance on workers’ rights to use work email under the NLRA. Management-side labor attorneys say it’s a sign the board is looking to overturn Purple Communications, which could allow employers to make their email use policies more restrictive again.

the NLRB announced Aug. 1 it is inviting briefs on whether it should adhere to, modify or overrule its precedent in Purple Communications. The board asks for amici input as it decides a case in which Caesars Entertainment Corporation is challenging the Purple Communications precedent.

But the board isn’t just looking at email use in the workplace. It is also asking for input on how it should interpret employees’ rights to use “employer-owned computer resources” besides email. These might conceivably include employer-owned databases, instant-messaging and other tools workers normally use for business but might be using for non-business purposes — and even for union organizing.

In May 2016, an NLRB administrative law judge issued a decision in Purple Communications finding that the company violated the NLRA by maintaining a policy that banned employees from using the company email system for non-business use. By prohibiting all non-business communications on the company email, the ALJ determined, Purple Communications was also infringing on workers’ “presumptive right” to use work email for communications protected under NLRA Section 7. The Purple Communications decision, which the board upheld in December 2014, did make an exception for when the employer “can demonstrate that special circumstances necessary to maintain production or discipline justify restricting that presumptive right.”

Prior to that ruling, the NLRB held that employers could restrict employees’ non-business use of their work email system as long as the policy itself was neutral to Section 7. The policy could implicitly prohibit workers from using the employer’s email for Section 7-protected activity and still be lawful, according to the board’s 2007 precedent in Register Guard.

Purple Communications had a widespread impact on employers’ email use policies, said David Zwisler, of counsel with the Denver office of employment defense firm Ogletree Deakins Nash Smoak & Stewart.

“I think it was very common for an employer to restrict individuals’ email use to business purposes,” Zwisler said. Purple Communications, he added, “was a significant shift away from an internal control that employers believed that had the right to exercise.”

A case between Caesars Entertainment Corporation and International Union of Painters and Allied Trades has reopened the email controversy. The board is asking amici for briefs on that case until September 5. Board members Mark Gaston Pearce and Lauren McFerran dissented from the decision to invite the briefs.

Local labor and employment attorneys say Purple Communications’ days are numbered.

“The board is definitely going to reverse Purple Communications,” said Bill Berger of Denver-based firm L2S Legal. The reason the board is asking for briefs on the case, he thinks, is “they are trying to figure out a ruling that makes sense for a complicated issue.”

Berger said the board majority more or less knows what it’s going to do with the Purple Communications standard: it will likely rule that employees don’t have a presumptive right to use company-owned email for non-business purposes, and perhaps make an exception for exigent circumstances employees might have, he predicted.

The reason the NLRB is issuing a notice to file briefs in the case, Berger said, is to see how and if its ruling should apply to other modes of corporate-owned communication. Employees don’t just communicate through email, but also instant-messaging and other platforms that might be proprietary to the company. The NLRB might even address whether workers have the presumptive right to use file-storage systems for Section 7-protected activity. An example of this might be workers storing union-related fliers on the company’s version of Dropbox, Berger said.

The board might have to address those other communication channels if it wants to issue a practical decision that keeps up with the modern workplace, Berger said. “They don’t want to adopt a rule that doesn’t make sense in a year.”

Zwisler expects the NLRB will overturn Purple Communications “either in part or in total.” The current board under President Trump has telegraphed as much, given its relaxed standard on lawful workplace policies in its December decision in Boeing. NLRB General Counsel Peter Robb issued a memo in June offering guidance on the legality of workplace policies post-Boeing.

Even though a rollback on Purple Communications is a near certainty, Zwisler said he’s “always hesitant to advise employers to make changes” leading up to a decision. He suggests employers wait and respond when the change is announced before adjusting their policies governing email use. 

— Doug Chartier

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