On December 11, 2014, the National Labor Relations Board (NLRB), the appellate judicial body charged with enforcing the National Labor Relations Act (NLRA), made a landmark ruling requiring employers to review their policies and procedures on regulating employees’ email. In Purple Communications, Inc., 361 NLRB No. 126 (2014), the NLRB ruled that employees given access to an employer’s email system can, absent special circumstances, presumptively use email to engage in Section 7 activity on nonworking time. Section 7 of the NLRA grants employees the “right to…engage in…concerted activities for the purpose of collective bargaining or other mutual aid or protection” (29 U.S.C. § 157). This overturned a seven-year-old decision, Guard Publishing Co. d/b/a Register-Guard, 351 N.L.R.B. 1110 (2007) (“Register”), which held that employees do not have the right to use their employer’s email systems for Section 7 purposes.

The employer in Purple Communications had a policy in its handbook that essentially prohibited employees from using the company email system to engage in activities for nonbusiness purposes. This policy was challenged based on the argument that it unlawfully impeded employees from engaging in protected activity through a medium (emails) that is now omnipresent in the business world. The employer cited NLRB precedents in arguing that its legitimate property interest in maintaining the use of its equipment in a nondiscriminatory manner outweighs an employee’s interest in self-organization through an employer’s email system. The employer also argued that the increased availability of personal email accounts and smart phones allows employees to adequately communicate for Section 7 purposes and that this eliminates the need for employees to use their employer’s email system for nonbusiness purposes.

The NLRB found that the Register decision was “clearly incorrect” and “undervalued employees’” fundamental Section 7 right to communicate about working conditions in the workplace, “while giving too much weight to employers’ property rights.” The NLRB stated that the Register opinion “inexplicably failed” to acknowledge the importance of employees’ using emails in the 21st century to exercise protected rights under the NLRA.

The NLRB cited U. S. Supreme Court precedent that held that the Section 7 right to organize and bargain encompasses the right to communicate with one another at the workplace. The NLRB cited several staggering statistics detailing the billions of work emails sent on any given day. The NLRB then concluded that where an employer’s cafeteria was once the place for employees to come together and discuss nonwork matters, the ever increasing use of email now represents the “natural gathering place” for employees to discuss both nonwork matters and issues affecting their status as employees, such as possible union representation. The NLRB noted that employee use of company emails for personal matters is “common” and that many employers already permit personal email use by their employees. The NLRB noted that the Register decision’s failure to recognize the role that email communications already plays in the workplace indicates that the NLRB had not changed with the times.

The NLRB went on to dismiss each of the employer’s other arguments. The NLRB found that the employer’s complete ban of nonwork emails on employer-owned email systems violated employees’ rights under the NLRA. The NLRB then concluded that it will presume that employees who have rightful access to their employer’s email system can use emails for Section 7 activities on nonworking time. An employer can rebut this presumption by demonstrating “special circumstances” necessary to maintain production or discipline. The NLRB, however, was quick to point out that only in a “rare case” would a total ban on nonwork emails be warranted.

This decision will be applied retroactively. That is, employers that have a handbook policy prohibiting employees from using their employer email address for all nonbusiness purposes need to immediately revise their handbooks in accordance with the NLRB’s ruling. Employers can continue to monitor employee email usage for legitimate business purposes and continue to notify employees that they may not have any expectation of privacy in using the company email system. But, employers must make sure to refrain from “out of the ordinary” surveillance at a time when employees, for example, attempt to unionize. Otherwise, employers could face liability under the NLRA for improper surveillance.