On December 11, 2014, the National Labor Relations Board (NLRB) stoked the fire that has been building around issues related to employees’ use of company e-mail for non-work-related issues. It did so when it held that the National Labor Relations Act (NLRA) supports an employee’s right to use an employer’s e-mail system for non-business purposes, including discussions about union organizing. Purple Communications, Inc. and Communications Workers, AFL-CIO, 361 N.L.R.B. No. 126 (December 11, 2014).

Section 7 of the National Labor Relations Act (NLRA) protects the right of employees to engage in “concerted activities” with each other for collective bargaining or in efforts to improve working conditions and terms of employment. These concerted activities can be done in person, or by other methods of communication, including electronic media.

An employer’s discipline or termination of an employee, if found to violate Section 7, can lead to legal liability that may result in the imposition of financial damages, and lead to reinstatement of the employee. That fact has created interest, consternation, and varying levels of panic among employers trying to balance the rights of employees to protected concerted activity with a company’s right to expect compliance with its policies and with attempts to protect confidential information and electronic media.

While employer policies and handbooks continue to attempt limitations on the use of company resources and property – including e-mail – for non-work-related reasons and communications, employees and employee rights groups argue that such limitations could restrict Section 7 rights. The Purple Communications decision fits squarely within the position supported by employee groups.

The December 11 decision by the NLRB centers on a charge by the Communication Workers of America, AFL-CIO, that a company’s electronic communications policy, which prohibited the use of company equipment – including “email systems” – for activities “on behalf of organizations or persons with no professional or business affiliation with the Company,” was an unfair labor practice. The decision has raised concern because it overrules a 2007 decision (Register Guard, 351 NLRB 1110) by an earlier Board which held that employees had no statutory right to use employer e-mail for activities covered by Section 7.

The difference between the recent case and the 2007 matter, according to the current Board, is that the 2007 decision focused “too much on employers’ property rights and too little on the importance of email as a means of workplace communication.”

This recent decision specifically holds that the use of e-mail by employees for “protected communication on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”

Stating that its decision is “carefully limited,” the Board outlines exceptions to that holding. First, the decision applies only to employers who currently grant access to the company’s e-mail system – it does not require employees to be allowed to access such systems. Second, it allows a total ban on non-work use of e-mail, if a company can demonstrate “special circumstances” that make such a ban necessary. As an alternative to a complete ban, the decision allows for “uniform and consistently applied controls” over e-mail, if such controls are “necessary to maintain production and discipline.”

However, the Board’s decision may cause more confusion than it resolves, and the subjective nature of the exceptions (“special circumstances” is undefined in the decision, as is the nature of acceptable “controls” to maintain production/discipline) may create unanticipated litigation for companies who attempt to take advantage of them.

The Board has remanded the matter back to the Administrative Law Judge (ALJ) who originally heard the case in 2013 (and whose decision that Purple’s policy did not violate Section 7 also was overturned by this Board’s holding) to allow him to reopen the record in light of these exceptions and to allow the parties to “present evidence relevant to the standard we adopt today.” The ALJ’s upcoming decision may provide instruction that can help to create more concrete parameters for the exceptions.

Employers that currently have a business-use-only policy for social media and e-mail systems should review that policy in light of this decision. Regardless of whether the Purple Communications decision holds up to subsequent appellate review, a wave of new unfair labor practice (ULP) charges challenging existing e-mail policies seems likely.

It seems clear also that employers providing employees with e-mail access at work but prohibiting employee e-mail use during a union representation campaign are likely to have the results of the election challenged by the union and overturned by the Board, consistent with this decision.