Thursday, December 11, 2014
Today, the NLRB issued its 3-2 decision in Purple Communications, reversing Register-Guard. In Register-Guard, the Board concluded that employees had no right to e-mail communications that used employers' equipment or networks (including employer email addresses). This gave employers f almost total autonomy to ban workplace e-mails that involved NLRA-protected communications.
In Purple, the NLRB concludes that employees do have a Section 7 right to engage in e-mail communications at work, just like they have for written or oral communications at work under the Supreme Court's Republic Aviation case. As the Board noted, this result logically flows from Republic Aviation's holding that employer's real property interests cannot trump employees' NLRA right to engage in protected communications in the workplace--instead those interests must be balanced. The NLRB in Register-Guard distinguished Republic Aviation by relying on the fact that e-mail uses employers' personal, rather than real, property. However, as the Board acknowledged in Purple, that's backwards because personal property is entitled to less protection than real property. The Board also downplayed early cases making similar points for bulletin boards, telephones, and other personal property--none of which provided any substantive analysis of the issues involved.
The main rule in Purple is a Republic Aviation-based analysis, in which:
we will 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. An employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.
Some important points for this analysis. First, the Board did away with some aspects of Republic Aviation that doesn't fit e-mail well. In particular, the right to use e-mail is not based on whether it was made in a non-work area or whether it is a solicitation or distribution. This makes perfect sense, as neither distinction applies to electronic communications. In contrast, the rule is limited to non-work time. As the Board noted, this is going to require case-specific analyses. That shouldn't be too hard in most cases (e.g., if employees don't have work and non-work time delineated, the employer shouldn't be allowed to limit e-mail based on that distinction), but there will be some gray areas. Second, the presumption is limited to instances where employees already have access to employer e-mail. Third, the decision is limited to e-mail, but not other electronic communications. I find this odd, as the rationale of the decision should apply to texts and other similar electronic communications. But the Board was probably just trying to limit the holding's reach. Finally, the Board shed some light on how it will treat surveillance issues. This was a potentially big issue, but the Board took a fairly employer-friendly view by stating that as long as the employer monitors e-mail as it ordinarily would (e.g, it doesn't increase monitoring when a union is on the scene), it will be OK.
As many readers are aware, I've written a lot on this issue (including an amicus brief in Purple) and am quite pleased with the decision (if readers want more detail on these issues, you can see some of my earlier work here, here, and here). It could've gone further, but I think the Board issued a very sound decision that wisely tried not to go broader than it needed to. Although critics will say otherwise, the bottom line is that Purple is not a radical decision. Register-Guard was the aberration by flauting both Supreme Court and basic common law. In Purple, the Board merely reversed an error and extended well-established precedent to a mode of communication that isn't even that new anymore.