TBA Law Blog


Posted by: Christy Gibson on Jan 16, 2015

By Greg Grisham*

On December 11, 2014 the NLRB (“Board”), by a 3 to 2 decision[i] in Purple Communications, Inc., [ii] overruled its prior decision in Register Guard[iii] which held employers may prohibit employees from using the employer’s email system for activities protected by the National Labor Relations Act (NLRA) provided the rule is enforced in a nondiscriminatory manner.

Background

The Employer, Purple Communications, Inc. (“Purple”), provides sign-language interpretation services. Its employees provide two-way, real-time interpretation of telephone communications between deaf or hard-of-hearing individuals and hearing individuals.  They work at 16 call centers that process calls on a nationwide 24-hour basis.

Since June 2012, Purple maintained an employee handbook that contained the following electronic communications policy in pertinent part[iv]:

Computers, laptops, internet access, voicemail, electronic mail (email), Blackberry, cellular telephones and/or other Company equipment is provided and maintained by the [sic] Purple to facilitate Company business. All information and messages stored, sent, and received on these systems are the sole and exclusive property of the Company, regardless of the author or recipient. All such equipment and access should be used for business purposes only.

Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other Company equipment in connection with any of the following activities:

2. Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company.

5. Sending uninvited email of a personal nature.

Purple assigned its interpreters individual email accounts on its email system that used the accounts every day at work. The interpreters were able to access their company email accounts on the computers at their workstations, on computers in the call centers’ break areas and on personal computers and smartphones. The interpreters had Internet access on the break-area computers but very limited access at their workstations.

In the fall of 2012, the Communication Workers of America (“Union”) filed petitions to represent the interpreters that resulted in Board representation elections at seven of the Respondent’s call centers. The Union filed objections to the elections results and an unfair labor practice charge at Purple’s Corona and Long Beach facilities. One objection and the charge filed asserted that Purple’s electronic communications policy interfered with the interpreters’ freedom of choice in the election and violated Section 8(a)(1) of the NLRA. After a Complaint was issued, a hearing was conducted before an Administrative Law Judge (“ALJ”). The ALJ found Purple’s electronic communications policy lawful under the Board’s Register Guard decision.[v] The case was then appealed to the Board.

Board’s Decision

To begin its analysis, the Board majority stated the “issue is the right of employees under Section 7 of the NLRA to effectively communicate with one another at work regarding self-organization and other terms and conditions of employment.”[vi] The Board further stated “[t]he workplace is ‘uniquely appropriate’ and ‘the natural gathering place’ for such communications” and recognized that email communications at work has dramatically increased and become commonplace.[vii] Consequently, the Board held “employee use of email for statutorily protected communications on non-working time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”[viii] The Board reasoned that its Register Guard decision “focus[ed] too much on employers’ property rights and too little on the importance of email as a means of workplace communication.”[ix] By doing so, the Board stated its Register Guard decision “failed to adequately protect employees’ rights under the Act and abdicated its responsibility to adapt the Act to the changing patterns of industrial life.”[x]

Despite the reversal of precedent, the Board described its decision as “carefully limited” seeking “to accommodate employees’ Section 7 rights to communicate and the legitimate interests of their employers.”[xi] The Board noted its decision applied to only those employees who have been provided access to the employer’s email system and does not mandate employers to provide access.[xii] Moreover, the Board noted that as a further limitation “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.”[xiii]The Board stressed “because limitations on employee communication should be no more restrictive than necessary to protect the employer’s interests [the Board] anticipate[s] that it will be the rare case where special circumstances justify a total ban on non-work email use by employees.” [xiv] In addition, the Board stated “an employer contending that special circumstances justify a particular restriction must demonstrate the connection between the interest it asserts and the restriction.” [xv] Even where justification does not exist 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.”[xvi] The Board ruled that its decision would be applied retroactively finding that there would be no manifest injustice in doing so.[xvii]

Take Aways

At a minimum, the Board’s decision in Purple calls for employers to promptly reexamine existing email use policies to avoid potential future challenges to their validity under the NLRA. The decision also creates a potential conflict between existing employer email monitoring policies and practices and the NLRA prohibition on surveillance of union activity.

*J. Gregory Grisham is Of Counsel to Leitner Williams Dooley & Napolitan, PLLC and practices in its Nashville Office. He received his J.D. at University of Memphis, Cecil C. Humphreys School of Law in 1989.Greg may be reached at greg.grisham@leitnerfirm.com or (615) 255-7722.


[i] The decision was along party lines with the three Democratic Members Pearce, Hirozawa, and Schiffer voting with the majority and Republican Members Miscimarra and Johnson, each writing a lengthy dissenting opinion.

[ii] 361 N.L.R.B. No. 126 (2014).

[iii] 351 N.L.R.B. 1110 (2007).

[iv] 361 N.L.R.B. No. 126, at p.2.

[v]Id.

[vi]Id. at 1.

[ix]Id.

[x]Id.

[xi]Id.

[xiv]Id. at 14.

[xv]Id.

[xvii]Id. at 16-17.