Purple Communications, Inc. 361 NLRB No. 126 (2014)
The National Labor Relations Board, by a 3-2 vote, overruled the Board’s decision in Register Guard, 351 NLRB 1110 (2007) and ruled that “employee use of e-mail for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their e-mail systems in the course of their work.” The current Board faulted the Registered Guard Board for “focusing too much on employers’ property rights and too little on the importance of e-mail as a means of workplace communication.”
Major Principles of the Case:
- The ruling applies only to employees who have already been granted e-mail access in the course of their work and does not require employers to provide such access.
- An employer may impose a total ban on non-work use if e-mail it can prove “special circumstances” making a total ban necessary to maintain production or discipline. The Board noted that such circumstances will be rare.
- An employer may apply uniform and consistently enforce controls to the extent such controls are necessary to maintain production, i.e. prohibiting large attachments or audio/visual segments.
- The ruling applies only to e-mail access for employees.
- The ruling applies only to e-mail and does not address other types of electronic communication systems although the same standards will apply to electronic media.
- The ruling is expressly limited to non-working time.
- Ruling expressly allows employer who monitor e-mail systems for legitimate management systems to continue to do so and will not be considered surveillance so “long as the employer does nothing out of the ordinary.”
The Majority Decision
The majority rejected the Register Guard majority’s reliance on what this Board characterizes as “equipment cases,” which are various NLRB decisions from the 1970-2006 time frame wherein the Board held that an employer is not required to allow its telephones, copiers, public address system or bulletin boards to be used for non-business purposes.
The current Board, in deciding to disregard the “machine precedents” of the last 3 or 4 decades, said, “We must formulate a new analytical framework for evaluating employees’ use of their employer’s e-mail systems.” Having called for the formulation of a “new analytical framework,” the Board declared that its “starting point” and “foundation” should be . . . . . . . Republic Aviation, 324 U.S. 793 (1945). That’s right . . . . 1945 . . . 70 years ago. What better place to start, after all, to formulate something new than to use a case decided the same year World War II came to an end!
Analogizing employer e-mail systems of the 21st Century to the workplace “water cooler” of the 1940’s, the majority characterized an employer’s e-mail system as “effectively a ‘natural gathering place’ and a forum in which coworkers who ‘share common interests’ will ‘seek to persuade fellow coworkers in matters related to their status as employees.’” Again, why analogize an e-mail system to a photocopier, a telephone, a public address system or a closed-circuit television system when you have a good, old-fashioned water cooler out there?
The Two Dissenters
Member Mescamarra (R) and Johnson(R) wrote separately – Johnson far more extensively than Mescamarra – in dissent. Their main points:
- The majority’s jumping-off point, that an e-mail system and a water cooler are analogous is “inapt.” Breakroom and water cooler conversations are limited in space and time. E-mail communications can extend to the entire workforce and at any time the system is operational.
- Employees not only still have breakrooms and water coolers; they can and do communicate via other technologies not dependent on the employer’s business e-mail (“99.6 percent of the electronic world is a free speech zone for employees”).
- The technology of e-mail does not respect the “working time”/”break time” boundary. The sender of an e-mail might not know whether the recipient is working and the recipient might not know that the e-mail is not work-related. Either way, employees can simply send, review and respond to e-mails on their working time.
- Under the First Amendment, the Board cannot require an employer to pay for its employees to freely insult its business practices, products, management and other employees on its own e-mail system.
- Determine who in your workforce must have e-mail access to perform her/his job.
- Determine what e-mail and computer monitoring is not “out of the ordinary.”
- Make clear that your policy on solicitation applies to e-mail and other employer-provided communication systems.
In light of the 99.6%, to borrow a phrase from a former United States Secretary of State, what difference does it make?