A union that lost an NLRB election challenged the employer’s electronic communications policy, claiming that the restrictive e-mail policy had interfered with the employees’ freedom of choice in the elections. The policy, as most such policies do, prohibited employees from (a) using the employer’s computer, internet, voicemail and e-mail systems, or other company equipment to engage “in activities on behalf of organizations or persons with no professional or business affiliation with the Company;” and from (b) sending “uninvited email of a personal nature.”

 

The NLRB agreed with the union, and overruling its own longstanding precedent, announced a new rule in Purple Communications, Inc., 361 NLRB No. 126 (2014):  employees who have been provided access to the employer’s e-mail system are presumed to be entitled to use the system to engage in statutorily protected discussions about their wages and other terms and conditions of employment during non-working time, unless the employer can demonstrate special circumstances that justify specific restrictions.

 

To demonstrate special circumstances, the NLRB stated, an employer must articulate the specific business interest at issue and show how the interest supports a restriction on using e-mail during non-working time.  There are some limits to the new presumption of access, however:

 

  • It does not require employers to provide employees with access to their e-mail system at all. The presumption applies only to employees who have already been granted access to the employer’s e-mail system in the course of their work.
  • An employer may justify a total ban or restrictions on employees’ non-work use of e-mail, including protected use on non-working time, by demonstrating special circumstances that make the ban or restrictions necessary to maintain production or discipline.

The presumption does not require that e-mail access be granted to non-employees (such as union organizers), nor apply to any other type of electronic communication systems;