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Rip Van Winkle Awakens! – The NLRB Overturns Register-Guard

In their dissent to the National Labor Relations Board’s Register-Guard decision, Board Members Liebman and Walsh classically stated that “the NLRB has become the ‘Rip Van Winkle of administrative agencies. Only a Board that has been asleep for the past 20 years could . . . contend, as the majority does, that an e-mail system is a piece of communications equipment to be treated just as the law treats bulletin boards, telephones, and pieces of scrap paper.” See 351 NLRB 1110, 1121 (2007). After a seven year slumber, the Board has awoken and is attempting to get with the times. See Purple Commc’ns, Inc., 361 NLRB No. 126 (2014). A 3-2 majority of the Board adopted the logic of Liebman and Walsh’s dissent and overruled what many believed to be a canonical case on the balance between employees’ Section 7 rights and employers’ property rights. See Purple Commc’ns, Inc., 361 NLRB No. 126 (2014). Even more shockingly, the majority also held that the holding in Purple Communications will apply retroactively. This means that the rule will apply to the litigants in Purple Communications as well as all other matters currently pending before the NLRB. Therefore, employers must read this decision and carefully review their IT policies. Unless and until Purple Communications is reversed by a federal district or appellate court, “employee use of e-mail for statutorily protected communications on non-working time must presumptively be permitted by employers who have chosen to give employees access to their e-mail systems.” Id. at 126.

The Facts and Procedural Posture of Purple Communications

Interestingly, the facts giving rise to this ground breaking decision are simple. Purple Communications, Inc. provides telephone call interpretation services to deaf and hard of hearing individuals. To provide this service, Purple Communications employs sign language professionals known as Video Relay Interpreters or “VIs.” A VI listens to a customer’s call and then uses ASL to sign the non-hard of hearing individual’s verbal responses into a video camera which feeds into a video screen on the customer’s computer. This allows the customer to understand and respond to the person on the other end of the line in real time. The VIs are physically located in 15 call centers that are spread across the country. Each VI receives a Purple Communications e-mail account that can be accessed from work or home. However, Purple Communications maintained an Electronic Communications Policy which stated the following:

“Computers, laptops, internet access, voicemail, electronic mail (email), Blackberry, cellular telephones and/or other Company equipment is provided and maintained by the [sic] Purple to facilitate Company business. . . . All such equipment and access should be used for business purposes only.”

. . . .

“Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other Company equipment in connection with any of the following activities:

. . . .

“Engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company.”

In 2012, the Communication Workers of America (“CWA”) sought to organize the VIs at several of Purple Communications’ California facilities and ultimately filed election petitions with the NLRB. The elections were held but the CWA filed objections to the election results. The objections were based, in part, on Purple Communications’ Electronic Communications policy. The CWA argued that maintenance of the policy unlawfully interfered with the VIs’ freedom of choice during the election process and constituted an unfair labor practice.

The administrative law judge who heard the case was bound by Register-Guard and summarily rejected the argument that Purple Communications’ Electronic Communications Policy was unlawful. “If the General Counsel’s arguments in favor of overruling Register-Guard have merits, those merits are for the Board to consider, not me. . . . Therefore, the allegation that [Purple Communications] violated Section 8(a)(1) by maintaining rules that prohibit the use of company equipment for anything but business purposes should be dismissed.”

The Purple Communications Rule regarding employee use of employer e-mail systems for activities protected by Section 7 of the NLRA.

The Board took the administrative law judge’s invitation and overruled Register-Guard. As of December 11, 2014, it is presumptively unlawful for an employer to prohibit its employees, who have already been granted access to the company e-mail system for work purposes, from using their company e-mail accounts to engage in protected activities on non-working time. However, the Board also held that this general rule is subject to two qualifications:

  1.  In the rare case where an employer can show the existence of “special circumstances,” it can implement a complete ban to maintain production and discipline.
  2.  In the more likely case where no special circumstances are present, an employer may lawfully implement uniform and consistently enforced rules regarding its e-mail system to the extent such controls are necessary to maintain production and discipline.

The Board also specifically noted that the rule does not apply to non-employees. Therefore, non-employees such as union organizers, social activists or other individuals that are unrelated to the company have no right to access or send messages on the employer’s e-mail system at any time.

The Purple Communications Majority: By failing to understand the unique qualities of digital technologies like e-mail, the Register-Guard Board failed to strike the appropriate balance between employees’ Section 7 rights and employers’ property rights. We are correcting that error in judgment.

The Purple Communications majority abandoned Register-Guard because it believed that the Register-Guard Board failed to understand the unique qualities of e-mail as well as other modern work place technologies and, as a result, “mistakenly placed more weight on [the Board’s employer equipment cases] than those precedents [could] bear.”

The idea animating the majority’s logic is that it is unreasonable to hold as a matter of law that employee use of company e-mail accounts for activities protected by Section 7 substantially interferes with the property rights of employers. Citing the Restatement (Second) of Torts, the majority notes that liability for trespass to personal property cannot be found unless a particular type of harm is shown. It argues that the same logic should apply to employer e-mail accounts. In the majority’s view, if an employer cannot show it has been substantially harmed by allowing its employees to use the e-mail system for protected activities, it has no reasonable basis to claim its property rights have been harmed. But employees who are prevented from using their employer’s e-mail systems are substantially harmed in that they are completely deprived of using “the most pervasive form of communication in the business world” to air their grievances and speak with other employees about their terms and conditions of employment.

The Purple Communications Dissenters: By failing to appreciate the power of new age alternatives to e-mail (such as Facebook, Twitter and Snapchat), the current Board unnecessarily infringes on employers’ property rights. Ironically, it is the Purple Communications majority that is out of touch with the times.

The dissenters take issue with the majority’s understanding of technology and its policy implications. In their view, the majority’s rule is unjust in the reserve direction.

Employers are substantially harmed because they are being forced to partially cede the right to control how their property is used. “An owner of property is normally entitled to permit its use while imposing conditions or restrictions, based on the mere fact that he or she is the owner. Even if government-compelled access does not destroy the availability of private property for concurrent use by the owner (or others at his or her direction), this is still an extraordinary intrusion on the owner’s private property rights.”

Employees, on the other hand, are not substantially harmed by a complete ban on non-work related use of the employer’s e-mail system because many other more advanced and effective technologies are available to employees to use for activities protected by Section 7.  In other words, a complete ban does not constitute “an unreasonable impediment to self-organization. Given the current state of electronic communications, there is no rational basis for such a presumption. National uprisings have resulted from the use of social media sites like Facebook and Twitter, for example, even when governments have used force to prevent such activities.”

Who is Rip Van Winkle and why should I care? [i.e. What does this mean for my business?]

At bottom, Purple Communications illustrates that an employer’s IT Policy must be a living document. It is not something that can be drafted, put into an employee handbook and then forgotten about. Employers who do not regularly (i.e. at least annually) review their policy, do so at their own peril. Like Rip Van Winkle, the slumbering employer will awake to a regulatory environment that has dramatically changed. At that point, the negligent employer’s only option is to cross its fingers and hope that it can get all of its material updated before some high impact event, such as a Department of Labor audit or a union organizing, drive occurs. Nonetheless, experience suggests that many employee handbook policies do not get reviewed until there is some external threat such as a lawsuit or audit by a regulatory body.

Do not be the negligent employer. Regardless of how Purple Communications is ultimately decided, the issues it raises are here to stay and new issues will continue to emerge. For example, does an employer still “own” its e-mail system when that system is actually provided as a service from a cloud-based software provider? In other words, will SAAS business models make the entire framework which the NLRB is using to analyze the situation – i.e. personal property rights vs statutory rights – irrelevant?

There is no way to conclusively answer this type of question up front. The key is to remain vigilant and constantly ask important questions such as the following:

  1. What kinds of technology are essential to my business? What kinds of technology will be essential to my business in the future?
  2. How do my employees use technology? How will they use technology in the future?
  3. What employee activities do I need to control or limit to protect the company from liability?
  4. Will the company consistently, effectively and impartially enforce the IT Policy?
  5. How do I measure number 4? Is it even possible to do so?

Repeatedly asking and answering these questions will at least create a starting point for maintaining an effective IT Policy.