Business-only Email Rules are Presumptively Unlawful, Restrain Employees' New Rights to Use Company Email for Section 7 Activity: NLRB

Practical Law Legal Update 4-592-3325 (Approx. 11 pages)

Business-only Email Rules are Presumptively Unlawful, Restrain Employees' New Rights to Use Company Email for Section 7 Activity: NLRB

by Practical Law Labor & Employment

Background

Purple Communications uses computers with video feeds to provide nationwide sign-language interpretation services from 16 call centers. Interpreters are assigned individual email accounts on the employer's email system. Interpreters can access their work email accounts while at their workstations, in call center break rooms and on their personal computers and smart phones. The employer's handbook prohibits its interpreters from using the company's computer, internet, voicemail and email systems for nonbusiness purposes such as:

Engaging in activities for organizations or persons with no professional or business ties with the company.
Sending uninvited personal emails.

The policy was styled after the one found lawful in Register-Guard. In Register-Guard, a divided Board held that:

Employees had no statutory rights under the NLRA to use employer email systems to communicate with each other about union matters and other terms and conditions of employment.
Employers could lawfully restrict employee use of email systems like other types of employer-owned communications equipment if they did so in a non-discriminatory manner.
Employers may draw lines between permitted and prohibited activities on a non-Section 7 basis, such as a line between:
- business-related use and non-business related use;
- charitable solicitations and non-charitable solicitations;
- solicitations of a personal nature and solicitations for the commercial sale of a product;
- invitations for an organization and invitations of a personal nature; and
- solicitations and mere talk.

In 2012, the Communication Workers of America (CWA) filed petitions for elections to represent interpreters in seven call centers. The union filed objections to the elections and parallel unfair labor practice (ULP) charges challenging many employer actions and policies.

An NLRB administrative law judge (ALJ) considered the evidence regarding the objections and alleged ULPs. He, among other actions, dismissed the ULP allegation and overruled the election objection related to the electronic communications policy, finding that the employer's policy was lawful under Register-Guard.

(351 N.L.R.B. at 1118, supplemented on partial remand 357 N.L.R.B. slip op. 27 (Jul. 26, 2011).)

The parties filed exceptions to the ALJ's findings with the Board. While the Board considered the case, on April 30, 2014, it invited the parties and interested amici to file briefs and submit evidence to assist it in determining:

Whether and on what grounds it should overrule Register-Guard.
What standards, restrictions and factors should be applied to employee access to employer electronic systems if the Board overruled Register-Guard.

(See Legal Update, NLRB Invites Briefs on Employees' Rights to Use Employers' Electronic Communications Systems for Section 7 Activity.)

The Board severed and resolved all election objections and exceptions to the ALJ's determinations except those concerning the electronic communications policy (see Purple Comm'ns, Inc., 361 N.L.R.B. slip op. 43 (Sept. 24, 2014)).

Outcome

The Board majority (Chairman Pearce and Members Hirozawa and Schiffer):

Overruled Register-Guard to the extent it held that employees did not have a statutory right to use their employers' email systems for Section 7 purposes.
Held that employees who have access to their employers' email systems for work presumptively must be permitted to use their employers' email system for statutorily protected communications during nonworking time. Employers must produce evidence of special circumstances to justify bans or limits on employees' exercise of these rights.
Overruled Johnson Technology (345 N.L.R.B. 762 (2005)) to the extent that it held an employer may lawfully exercise property rights to prohibit an employee from using a sheet of its used copy paper to notify co-workers about a union meeting
Remanded the case to the ALJ to allow the parties to introduce evidence relevant to determine if the employer's electric communications policy was lawful (justified by special circumstances).

The majority focused on several themes:

Justifying its decision to overrule Register-Guard.
Framing a new presumption-based analysis for scrutinizing employer email rules.
Explaining the application and limits of its holding in this case.

Justifications for Overruling Register-Guard

The majority found that Register-Guard was significantly flawed because it:

Failed to adapt to the changing times, such as by not recognizing how:
- pervasive email has become in workplaces;
- email permits multiple simultaneous users;
- email recipients can identify the subjects of email and delete or save them for later reading;
- email connects telecommuters to their workplace; and
- permitting employees to use email during nonworking time adds minimal incremental costs and burdens to employers' email systems.
Gave too much weight to employers' property rights.
Gave too little weight to employees' Section 7 rights to communicate in the workplace about the terms and conditions of employment.
Failed to recognize the importance of email as a critical way and forum in which employees engaged in protected communications.
Analyzed email systems as analogous to employer-owned communications equipment.
Relied on broad propositions from the Board's communications equipment cases (labeled dicta) that:
- employers could lawfully restrict employee use of their communications equipment; and
- employees had no Section 7 rights to use that equipment.
Failed to protect employees' rights to engage in protected activity during nonworking time.

The New Presumption-based Analysis of Employer Email Rules

As an initial premise, the majority reasoned that:

Exercise of Section 7 rights encompasses the right not just to communicate with co-workers about self-organization at the jobsite, but to effectively communicate about those matters at the jobsite (Beth Israel Hosp. v. NLRB, 437 U.S. 483, 491-92 (1978)).
The email system is the modern gathering place for workers to discuss workplace issues, akin to the cafeteria in which an employer could not ban union discussions in Beth Israel .
Republic Aviation Corp. v. NLRB which, among other things held that the Board could apply a presumption that an employer could not lawfully restrict employees' union solicitation while employees were on their property during nonworking time without proving special circumstances make the ban necessary to maintain production or discipline, should set the framework for evaluating email restrictions for employees who are currently granted some access to email systems (324 U.S. 793, 803 n.10 (1945)).

Based on Republic Aviation, the majority ruled that:

Employees already given access to employers' email systems in the course of their work have a presumptive right to use the email system to engage in Section 7 protected communications on nonworking time. As a corollary, employer policies banning those employees from using email for nonwork use of email during nonworking time are presumptively unlawful.
Employers can completely ban nonwork use of email, including Section 7 use during nonworking time, if they show (in later ULP investigations or trials) that special circumstances made the prohibition necessary to maintain:
- production; or
- discipline.
Employers seeking to prove special circumstances for email restrictions must show that the specific restriction protects a particular real (rather than hypothetical) interest.
In cases where an employer cannot justify a total nonworking time ban of nonwork emails, the employer can police the use of its email system by applying uniform rules and consistently enforced controls to the extent needed to maintain production and discipline. For example, an employer could prohibit large attachments or audio/video segments if the employer could show that they would interfere with the email system's efficient functioning.

Application of this Case

Retroactivity.

The Board decided to apply its new presumption analysis retroactively because it would not work a "manifest injustice." There would be no manifest injustice because although employers relied on the pre-existing law, applying the new analysis was necessary to immediately protect employees' Section 7 rights. Furthermore, employers would have an opportunity to offer evidence about the special circumstances justifying total bans or how their policies were based on legitimate managerial interests.

Limitations.

The Board noted that its decision did not address:

Email access by outsiders because the Board found that nonemployees did not have rights to access employers' email systems.
Other means of electronic communication.
Employees who did not already have access to employers' email systems as the Board did not require an employer to grant employees access to its email system where it had not chosen to do so.
How employers could or should identify working time as distinguished from nonworking time.
Register-Guard's analysis of what constitutes unlawful discrimination under the NLRA.

Responding to the dissenting opinions, the employer's brief and amici briefs supporting continuation of the Register-Guard standard, the majority noted that:

The decision does not prevent employers from:
- notifying employees that it reserves the right to review work computers and emails for legitimate management interests and that they should have no expectation of privacy in either; and
- monitoring computers and email systems for legitimate managerial reasons, such as ensuring productivity or preventing email use for harassment or other activities that could give rise to employer liability.
It was confident that the Board could assess any unlawful email surveillance allegations using the same methods they use for such claims in the brick-and-mortar world.
Reversing Register-Guard and requiring employers to permit employees to use company email for Section 7 activity would not infringe employers' rights under Section 8(c) of the NLRA or the First Amendment because:
- recipients of employee emails would not perceive them as speech by, or speech endorsed by the employer; and
- email users generally understood that an email message conveyed the views of the sender, not those of the email system's provider.
It was not creating a new Section 7 right; it was extending existing employee communication rights in-step with changes in the modern workplace.

The Dissenting Opinions

Member Miscimarra dissented, noting among other things that:

The majority invalidly presumes that employees need to use employer email systems to engage in NLRA protected concerted activities given social media sites, text messaging, and other email services with features that are more effective, more user-friendly and more conducive to facilitating concerted activities than employer email systems.
The majority's standard fails to appropriately balance NLRA-protected rights and employer property rights by implying that once an employer grants employees access to its email systems for any purpose, the employer's property right in its email system becomes irrelevant.
The majority's new standard will create significant, unintended problems for employees, employers, unions and the Board because it will be impossible to decipher and police what communications violates lawful restrictions against solicitation during working time. Traditionally, solicitation was permitted when both parties to the solicitation activity were in nonworking time. Given the nature of email, determining whether the sender was not working when the message was sent and the often multiple recipients were on nonworking time when they read the message will not be feasible.
The majority's new standard makes it impossible for parties to have "certainty beforehand" regarding their rights and obligations whereas Register-Guard provided employers with a bright line rule that was easy to understand and apply, rather than a confusing test with many uncertainties in its application.
The majority opinion endorses employers sponsoring and subsidizing employees' Section 7 union organizing activity in conflict with precedent regarding Section 8(a)(2) of the NLRA and arguably in conflict with the strictures of Section 302 of the Labor Management Relations Act.

Member Johnson dissented, noting, among other things, that:

Email is not a water cooler and the majority misunderstands the crucial differences between email and physical space. The decision impermissibly undermines the rights to own and operate an email network for business purposes.
The Republic Aviation framework is inapplicable to company operated email networks as precedent shows there is no Section 7 right to the use of equipment, nor can the fact of employee convenience create one.
Even if Republic Aviation were applicable, it calls for a different outcome than the one presented by the majority because the case:
- measures alternatives for employee communication before extending the Section 7 right to employer property;
- established a right of property access only as it was adequate for the effective exercise of Section 7 rights; and
- protected the employers' interest in productivity by establishing that "working time is for work."
There are many alternative communication networks besides business email systems that employees can use to communicate about their Section 7 rights.
Allowing an employer's business email to be used for Section 7 communication interferes with the employer's operations.
The majority cannot show that alternative ways for employees to exercise their Section 7 rights for purposes of communication are inferior to business email systems.
The majority's new rule violates Section 8(c) and the First Amendment as it mandates that employers fund and support dissemination of others' viewpoints on among other things, unions and union activity.

Practical Implications

Purple Communications unfortunately creates more questions than it provides answers. For example, there is little explanation of what constitutes special circumstances justifying extensive nonworking time email bans and provides no guidance about deciphering working from nonworking time of email senders and recipients. The majority overruled the bright-line test in Register-Guard, acknowledging that its replacement, a presumption-based analysis that presumes employee Section 7 rights to use company email during nonworking time until or unless an employer demonstrates there are special circumstances nullifying those presumptive rights in later ULP investigations and trials, would be difficult to apply and a work in progress.

In light of this decision, employers may consider:

Reviewing email policies and practices.
Revising email policies and practices to track the demonstrable managerial business interests and special circumstances justifying email use limitations (whatever those may be).
Training managers and supervisors how to implement and enforce the (revised) email policies.
Ensuring that employees have notice that emails may be monitored for legitimate reasons, negating employees expectations for privacy and reducing the risks that the NLRB will find routine monitoring to be unlawful surveillance.
Evaluating monitoring and enforcement practices even for policies regarding email use during working time, as the majority hinted that it would scrutinize enforcement of lawful working time email limitations for unlawful discrimination under the NLRA.
Before setting up employees with email access, evaluating whether the business benefits of email access outweigh the attached regulatory morass that flows through this decision.

UPDATE: On remand, Purple Communications opted not to assert that there were special circumstances justifying its electronic communications policy. It only asserted in its exceptions that the earlier decision was wrongly decided and should be reconsidered. The Board majority denied Purple Communications's exception and affirmed an administrative law judge's rulings against Purple Communications. (Purple Commc'ns, Inc., 365 N.L.R.B. No. 50 (Mar. 24, 2017).)

UPDATE: On December 16, 2019, in Caesars Entertainment d/b/a Rio All-Suites Hotel & Casino, the Board overruled Purple Communications, Inc. (368 N.L.R.B. No. 143 (Dec. 16, 2019); see Legal Update, NLRB Restores Employers' Right to Restrict Use of Email).

UPDATE: On October 8, 2020, the Board issued a Second Supplemental Decision and Order finding that no evidence existed in the record to indicate that the narrow exception to Caesars Entertainment for circumstances in which the employer's email system provides the only reasonable means for employees to communicate with one another applied to this case, and therefore Purple Communications did not violate Section 8(a)(1) by maintaining its electronic communication policy (Purple Commc'ns, Inc., 370 N.L.R.B. No. 33 (Oct. 8, 2020)).

Business-only Email Rules are Presumptively Unlawful, Restrain Employees' New Rights to Use Company Email for Section 7 Activity: NLRB | Practical Law