In a decision issued yesterday, the National Labor Relations Board opened the door for employees to use company email to send messages encouraging co-workers to unionize. In Purple Communications, Inc., the Board reversed what had been the law for the past 7 years. In its 2007 Register Guard decision, the Board had allowed companies to prohibit employee use of company email to solicit support for any cause, including union organizing. Reversing course in Purple Communications, the Board now holds that companies must permit the use of company email for solicitation, at least during non-working time, which is generally defined to mean anytime while on break, including meal time, and anytime before work begins and after work ends for the day.

The Purple Communications decision likely foretells what the next two years will be like under the currently constructed Board. In Purple Communications, the Board held that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.” The Board held that Register Guard was “clearly incorrect” in its focus on employer property rights and failure to recognize the importance of email as a means of workplace communication.

Claiming that its decision is “carefully limited,” the Board stated that it seeks to accommodate employees’ Section 7 rights to communicate and the legitimate interests of their employers. First, the Board stated that its decision applies only to employees who have already been granted access to the employer’s email system in the course of their work and does not require employers to provide such access. Therefore, employers can ban employee access to email altogether. But that will not be a workable solution for many workplaces. Second, an employer may justify a total ban on nonwork use of email. That will not be a desirable move for many employers because occasional nonwork use of email is engrained in the culture at many workplaces. Also, uniform enforcement of a ban on all non-work email could be a real challenge. Even if an employer chooses to take this path, the Board will require it to show “special circumstances” that make the ban on non-work email necessary to maintain production or discipline. The decision does leave open the possibility for the employer to “apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.” From this language it would appear the employer can still enforce a no-solicitation policy that limits email solicitation to non-working time as described above. Finally, the Board stated that it does not address email access by nonemployees, nor any other type of electronic communications systems, as neither issue was before it in Purple Communications.

Not surprisingly, the Board’s decision fell upon party lines with the three Democrat appointees in the majority and the two Republican appointees dissenting. Citing to national uprisings around the world that have been propagated by social media campaigns, Member Miscimarra in his dissent noted that “the majority decision improperly presumes that limiting an employer’s email system to business purposes constitutes ‘an unreasonable impediment to self-organization.” These facts , as well as the constantly evolving nature of social media and other electronic communication tools “render implausible any suggestion that employees are unreasonably prevented from engaging in NLRA-protected communications absent a statutory right to conduct such activities on the employer’s business email system.”

Member Johnson, another Republican appointee, argued that the majority decision “create[s] a sweeping new rule that interferes with an employer’s well-established right to restrict employee use of its property based on convenience” and violates employers’ First Amendment rights by requiring them to pay for speech they do not support.

Responding to the Purple Communications decision, employers should review their electronic communications and non-solicitation policies to confirm that they are compliant. Employers are cautioned, however, that if they already provide email access to their employees, that access should not be eliminated or curtailed without first discussing it with their labor attorneys, as such action easily could be viewed by the Board as a violation of either Section 8(a)(1) or 8(a)(3) of the NLRA.

This figures to be a wild and wooly next few weeks as the Board is expected to roll out more controversial decisions before year end. In fact, the Board has just issued its “quickie” election final rule, which you can read about here. Our analysis will follow shortly…