NLRB Defers Ruling on Legality of Employer Email Policies

Eric Paltell
Eric Paltell

For the past six months, legal prognosticators (myself included) have told readers that when the NLRB issues a ruling in the Purple Communications case, we’d have a new standard for what restrictions, if any, employers may place on employee use of company email systems.  On September 24, 2014, the Board issued its ruling.  And the answer is ….. “check back with us later (probably after the November election).”

Purple Communications provides sign language interpreters and communications services at facilities in California. On November 28, 2012,  union elections were held, and Purple won by margins of 16-10 and 16-15.  The Communications Workers of American (“CWA”) union filed post-election objections, alleging that the employer violated the NLRA by preventing employees from using the company email system for anything other than official business.  The CWA also alleged that Purple maintained an overly broad rule against “causing, creating, or participating in a disruption of any kind during working hours on Company property.”

The Board agreed with the Administrative Law Judge and ruled that the ban on disruptions was too broad because employees could reasonably interpret it to ban participation in a strike, as well as solicitation of co-workers during non-working time.  Therefore, the rule chilled the exercise of Section 7 rights, and, as result, violates Section 8(a)(1). As a remedy for this and other unlawful conduct (including implied threats and promises made to employees during pre-election speeches), the Board set aside the company’s victories and ordered new elections.

With regard to the email issue, most labor practitioners and scholars expected the Board to use Purple Communications to overrule Register Guard, 351 NLRB 1110 (2007). In Register Guard, the Bush NLRB held that employers may properly prohibit employees from using company email systems for non-work related purposes. Prior to deciding Purple Communications, the Board invited interested parties to submit amicus briefs on the email issue, and most observers expected the Board to create at least a limited employee right to use company email for personal purposes.

The Board decided to “sever and hold for further consideration the question whether Purple’s communication policy was unlawful.”  Although the Board did not explain its reasons for this ruling, I suspect it was motivated by the need to get new union elections scheduled  Deciding the email issue prior to the November governmental elections could  cause political fallout that may affect the outcome of some close races.  Therefore, I expect we will see ” Purple Communications: The Sequel” within a month or two after the November elections.

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