Are you an employer that has an e-mail system which your employees can access?  If so, then we have a holiday treat lump of coal for you.

About 10 days ago, the National Labor Relations Board issued a long-awaited opinion in Purple Communications, Inc., 361 NLRB No. 126.  In Purple Communications, the Board concluded that employers who provide use of their email systems to employees must allow employees to use the email systems to engage in protected activity (including organizing activity) during non-working time.  The decision overrules a prior decision of the Board, Register Guard, 351 NLRB 1110 (2007), in which the Board held that employers could maintain and enforce bans on employees’ non-work-related use of employer email systems.  According to the current Board in Purple Communications, the prior Board’s decision in Register Guard was “clearly incorrect.”  

Although the Board’s Purple Communications decision is premised upon a naïve understanding of electronic communication, a faulty belief that employers’ email systems are a primary means of communication for employees, and a stubborn refusal to recognize employer property interests in employer property, the case is – at least for now – the law.  Because of that, employers need to fully understand the implications of the decision.

What the Board Said

Like in many Board cases, their analysis in Purple Communications started with consideration of Section 7 of the National Labor Relations Act (Act), which gives employees the right to engage in “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 for mutual aid or protection….”  Concerted activity includes activity engaged in, with, or on the authority of other employees and not solely on behalf of the individual employee, or in which the employee seeks to induce, initiate, or prepare group action.  In plain terms, it means the employee complains together with or on behalf of others (or induces others to complain) about wages, benefits, hours, and other terms and conditions of employment.  In determining when and where an employee can lawfully engage in concerted activity, the Board has historically tried to balance employees’ Section 7 rights against employer property rights.

In Purple Communications, the Board said that use of email is akin to face-to-face conversation.  Indeed, the Board called email the “natural gathering place” for employees in the modern workplace (presumably avoiding the passé concept of “water cooler” for which it has been mercilessly ridiculed for using previously).  Thus, the Board concluded that an employer’s email communication system was not “property.”

As “face-to-face” communication, the Board concluded there is a presumption that employees have the right to use employer email systems to engage in Section 7 protected concerted activity during non-working time.  Thus, policies asserting “business only purposes” for email, prohibitions on engaging in activities on behalf of organizations with no affiliation with the employer, or prohibitions on uninvited personal emails – in short, any rules which might be construed as or have the impact of suppressing or treating differently concerted use of e-mail on non-work time – are now squarely in question and, perhaps, even unlawful.

The Board did state that an employer could rebut this presumption by demonstrating “special circumstances” necessary to maintain production or discipline.  For example, an employer may have restrictions necessary to protect the system from damage or overloads.  The employer, however, must be able to prove the need for such a restriction.  Said differently, a mere theoretical assertion is insufficient.  The Board stated very plainly – despite recognizing that the presumption could be overcome – that it couldn’t think of the rare instance in which a total non-work ban would be a “special circumstance.”

In a meager concession, the Board further acknowledged that even in the absence of special circumstances, employers can apply uniform and consistent controls over their email systems to maintain production and discipline.  That means it presumably remains lawful for the employer to prohibit employees from using its email system to send/receive sexually explicit material, chain emails, harassing comments, etc.   Further, employers may continue to monitor their email systems in a non-discriminatory manner, although – as discussed below – this practice now comes with additional landmines.

Other Implications

In overruling Register Guard, the Board flipped the script on the manner in which it drew the balance between employees’ Section 7 rights and employer’s property rights, and that re-balancing alone has serious implications.  Because Register Guard concluded that email systems were akin to property as opposed to face-to-face conversations, the Board had previously treated email systems the same as employers’ phone systems, copiers, bulletin boards, etc.  That is, employers could limit or prohibit access.  Not only did the Board discard the Register Guard rationale in Purple Communications, it strongly suggested in doing so – without formally concluding – that employers’ property interests in these other areas is also questionable, at best.

Further, the Board decided that the new decision applies retroactively.  In most situations, when a Court or agency creates new law, they apply it only on a going-forward basis, since it tends to be unfair to hold a party responsible for compliance with a law or standard which had not previously been in existence for them to know to adhere to in the first place.  In Purple Communications, however, although the employer in the case followed existing law, the Board determined that the injustice to employees not being able to exercise their Section 7 rights on employer email systems needed corrected immediately.

Action Steps For Employers

First and foremost, employers’ electronic communication, email, and social media policies need to comport with the Board’s most recent direction.  In addition, employers need to identify what, if any, limitations are necessary with respect to usage of their email systems and incorporate those into the policy.  As we mentioned above, some limits remain appropriate.

Next, employers need to have a systematic approach to monitoring employee email.  Employers will run the risk of interfering with employees’ Section 7 rights and discriminating against employees without clear internal monitoring parameters.  While the Board stated that employers continued to have the right to monitor, that won’t necessarily stop employees from filing unfair labor practice charges that the employer has engaged in unlawful surveillance of e-mails which can fairly be interpreted as concerted union activity.  For this reason, consistency in monitoring is critical.

Finally, be on the lookout for further compromising of other employer property rights in the future.  After Purple Communications, it is pretty clear that the current Board doesn’t value those rights quite the same way as the Board has in the past.

After the barrage employers have been dealt from the Board this year, we’d like to make a resolution going into the New Year that we won’t have to deliver any further bad news from the NLRB.  But, we won’t because unfortunately, we know that – like many resolutions – it probably wouldn’t be kept.


Todd Sarver focuses his practice on the representation of management in all aspects of labor and employment law. He has extensive experience representing employers in issues arising under the National Labor Relations Act, as well as in labor arbitrations, work stoppages, injunction proceedings, collective bargaining negotiations, corporate campaigns, unfair labor practice proceedings, labor litigation and bankruptcy proceedings.
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