On December 11, 2014, the National Labor Relations Board (the “Board”) overruled its prior decision in Register Guard and, in so doing, opened up an employer’s email system to non-business use by an employee. The Board in Register Guard, 351 NLRB 1110 (2007) had held that an employer may prohibit an employee’s non-business use of the email system during work or non-work time. Under the Register Guardholding, the prohibition could be applied even if an employer allowed de minimisnon-business related use by employees. The Register GuardBoard justified its holding by concluding that an email system belonged to the employer in the same way a photocopy machine belonged to an employer and, as such, the employer could restrict its use to work-related communications.

However, in its recent decision in Purple Communications, Cases 21–CA–095151, 21–RC–091531, and 21–RC–091584 (December 11, 2014), the Board overruled Register Guard by finding that an email system is a convenient avenue for employees to use to talk to each other, and that the Register Guardopinion was outdated. In Purple Communications, the current Board held:

We conclude that it is consistent with the purposes and policies of the Act [National Labor Relations Act], with our responsibility to adapt the Act to the changing work environment, and with our obligation to accommodate the competing rights of employers and employees for us to … presume that employees who have rightful access to their employer’s email system in the course of their work have a right to use the email system to engage in Section 7-protected communications on nonworking time.

Boiled down to its essence, the Board held that if an employer allows an employee access to the employer’s email system for business use, it must also allow that employee to use the email system for non-business use, which could include soliciting on behalf of a union or generally engaging in discussions concerning the terms and conditions of employment during non-working time. The Board did provide that an employer may attempt to limit an employee’s non-business use of the email system by showing “special circumstances;” however, the Board made it clear that such special circumstances will be very difficult to establish, explicitly stating that the Board anticipates those situations will be the “rare case.” For example, the Board stated, “We emphasize, however, that an employer contending that special circumstances justify a particular restriction must demonstrate the connection between the interest it asserts and the restriction. The mere assertion of an interest that could theoretically support a restriction will not suffice.”

It is important to note that the Board did acknowledge that the holding does not prohibit an employer from monitoring its email system. In so doing, the Board stated:

Our 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.

However, the Board further clarified that there are still limits on an employer’s monitoring ability and that an employer should be careful how it proceeds when there is union activity in its workplace. The Board explained as follows:

An employer’s monitoring of electronic communications on its email system will similarly be lawful so long as the employer does nothing out of the ordinary, such as increasing its monitoring during an organizational campaign or focusing its monitoring efforts on protected conduct or union activists. Nor is an employer ordinarily prevented from notifying its employees, as many employers also do already, that it monitors (or reserves the right to monitor) computer and email use for legitimate management reasons and that employees may have no expectation of privacy in their use of the employer’s email system.

While the Board does limit the non-business use to non-work time, from a practical standpoint, it is unclear how such a restriction could realistically be enforced even with monitoring. For example, a pornography filter may be able to send an alarm to an analyst in IT alerting that an employee sent or received an inappropriate email. However, it may be practically impossible for a filter to recognize whether an employee is on business time or non-working time when an email is sent or received. Furthermore, a filter intended to catch an employee using the email system for non-business related emails on working time would have to be able to recognize both parameters (non-business and working time), regardless of the content of the message.

Under the Purple Communications holding, an employer that does not want its employees to use its email system for non-business related purposes may totally restrict its employees from using the email system for ANY purpose. Such an approach, however, will not be satisfactory for most businesses. Failing a total prohibition, such an employer must show special circumstances which are directly related to a particular business interest. As indicated above, such special circumstances will be carefully scrutinized by the Board should an employee or a union challenge the prohibition. As such, any such policy must be carefully crafted so that it is directly tied to a legitimate business interest.

While it is very likely that the holding will be challenged in federal court, the outcome of such a challenge is a long way off. In the meantime, employers who do not modify their policy to comply with this new holding are at risk of being charged with a violation of the Act. Employers who are likely targets of union organizing should be especially careful in this area. A successful unfair labor practice charge based on an employer’s policy which violates the Board’s holding could result in the setting aside of an employer’s union election victory.