More than a year after the National Labor Relations Board’s (NLRB) momentous Purple Communications, Inc. decision, determining that employers must allow off-duty employees to use the company email system to engage in activities like union organizing, we reflect on the continued haze and lack of clarity in this critical area. The sharply divided 3-2 decision, in which the majority concluded that “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems,” represents a major shift from a long-standing principle that an employer’s property rights must, on occasion, take precedence over employees’ Section 7 rights to communicate on matters relating to terms and conditions of employment, such as union organizing.
Few NLRB rulings have caused as much consternation to employers, and in the year since the decision, many open issues still remain, such as:
• Will the principle of Purple Communications be expanded to non-employees?
• Are on-duty employees permitted to use emails for these purposes?
• What about other forms of electronic communications, such as corporate texting, voicemail, etc.?
Let’s review what has happened to the Purple Communications case itself. Since the board overruled the administrative law judge (ALJ), who had relied on an earlier, now overturned decision, the case went back to the ALJ, who in March 2015, not surprisingly, reversed himself and ruled for the union. The employer promptly, and equally predictably, disagreed with the judge’s new ruling and filed exceptions with the NLRB. The union filed cross-exceptions, and the parties then filed briefs in support of their respective positions; and there it has sat since early July 2015, awaiting another ruling from the board.
The Purple Communications majority intimated in the original decision that there could be “special circumstances” when an employer could legitimately ban all non-work related employee emails. However, the board was somewhat coy as to what those circumstances might be. In a decision last year, a hospital tested the waters arguing that the special nature of hospital operations justified minimizing workplace interruptions and banned all “solicitation-type” emails. The board disagreed and found the policy unlawful, but in doing so, it did not provide much in the way of new guidance as to its previously coy discussion about “special circumstances.”
Consequently and unfortunately, while much happened in 2015, there has been virtually no clarity on the scope of the Purple Communications principle. No one expects the NLRB to experience a remarkable epiphany and conclude that, after all, it was wrong in opening up employer email systems to union organizing. Everyone expects that this issue will be decided in the federal courts of appeal and possibly even the United States Supreme Court.
In the meantime, employers are left to work with what little information the board has provided to analyze the questions of whether non-employees are entitled to the employer’s email system for union organizing purposes; whether employees may use email for organizing purposes while on duty; and whether other forms of electronic communications are open for the same use (and the smart money is in favor of employee usage, at least with respect to this last question). Concerned employers would probably agree with the author of Purple Haze: “don’t know if I’m coming up or down.” The wheels of justice turn slowly, but grind exceedingly fine. Employers will have to be patient to see where this issue ends up.