Say “goodbye” to Purple Communications and “hello” to Rio All-Suites Hotel and Casino. On December 17, 2019, the National Labor Relations Board released a new ruling about employees’ company email use. Specifically, the NLRB reversed a 2014 decision that had granted some employees the right to use their work email account for certain non-work purposes. What does this mean? And how long will it last?

Purple Communications Limited Private Company Property Rights

In December 2014, the NLRB decided a case involving Purple Communications. That decision gave a colorful name to a surprising encroachment on private companies’ control over their email systems.

A divided 3-2 Board for the first time ruled that employees had a federally-protected right to use their company work emails to engage in concerted activity for their mutual aid and protection. That refers to employees’ rights under Section 7 of the National Labor Relations Act. It’s the law that allows employees to join unions. And it also allows them to engage in other forms of joint activities toward improving their work conditions.

Three Democratic NLRB members comprised the Purple Communications majority. The two Republican members dissented.

The majority identified some limitations on their 2014 ruling:

• “First, it 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.”
• “Second, an employer may justify a total ban on nonwork use of email, including Section 7 use on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline. Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.”

Employer Property Interest Overtakes Employee Interests

A 3-1 Republican NLRB majority has reaffirmed that federal law doesn’t entitle employees to use employer-owned equipment for non-work purposes.

The NLRB now holds that employers can restrict employees’ company email use for non-work purposes, including activity otherwise protected by Section 7.

The Board majority observed that “in modern workplaces employees also have access to smartphones, personal email accounts, and social media, which provide additional avenues of communication, including for Section 7–related purposes”. They did, however, allow that there might be an unusual workplace devoid of such alternative means of communication. There, perhaps, Section 7 rights might trump the employer’s property rights. But the majority did not attempt to hypothesize such a scenario.

On the last day of her term, outgoing Democrat Member Lauren McFarren dissented. She contends, “The majority’s decision aims to turn back the clock on the ability of employees to communicate with each other at work . . . .”

A Philosophical Divide

As with many questions under federal labor law, the NLRB’s ruling on this issue reflects a partisan debate. Several other decisions issued around the same day as Rio All-Suites Hotel and Casino demonstrate the same reality. Democrats and Republicans read the National Labor Relations Act differently. As a result, NLRB precedent may only last slightly longer than a Presidential term. Purple Communications, for example, was the law of the land for almost exactly five years.

Should Employers Change Their Policies?

If you had proactively responded to the NLRB’s 2014 pronouncement that employees had a right to use their work email for non-work purposes, then you might have changed or adopted written policies to that end. If so, you could consider revising those policies again. But it’s not a decision to be made automatically.

Employers who, for example, already allow employees to use work emails for a range of personal communications, should be cautious in how they suddenly limit that freedom. If nothing else, a strict contrary policy could anger and alienate employees. In extreme cases, it might even contribute to the type of employee dissatisfaction that contributes to unionization efforts. You probably don’t want that. (Read: Are Unions Bad? 4 Tips for Employers)

And if you do change your company email use policy or practice now, make sure to keep your ears open for the next time Democrats are in the majority on the NLRB.

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