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In 2007, the National Labor Relations Board (NLRB) issued its Register Guard decision allowing employers to prohibit employees from using company email to engage in discussions about the terms and conditions of their work with other employees or unions for purposes of “mutual aid and protection,” which are protected under Section 7 of the National Labor Relations Act. In April 2014, the NLRB issued a notice and invitation to the parties in a case involving Purple Communications, Inc. and interested amici curiae to file briefs on whether Register Guard should be overruled. The NLRB received numerous amici briefs on the issue. Employers were relieved when the NLRB deferred a decision on overruling Register Guard in September of last year.

The relief was short-lived. Just three months later, the NLRB reversed course and overruled Register Guard, noting that email “has become a critical means of communication” and is “a natural gathering place” for employees to communicate with each other. In a 3-2 decision involving Purple Communications, Inc., the NLRB ruled that employees who have access to their employer’s email system for work purposes presumptively have a right to use the system for protected communications on nonwork time.

Here are answers to some basic questions about how Purple Communications impacts company email policies:

Must employers give all their employees access to the company email system?

No. Employees have a right to use corporate email for protected communications only if they already are given access to the system for work or personal reasons. Purple Communications does not force employers to grant email access to anyone. For that matter, employers are not required to grant email access to non-employees, including unions and union organizers.

May employers put restrictions on use of company email for protected discussions during nonwork hours?

Maybe. Employers may restrict use of company email to engage in protected discussions during nonwork time by demonstrating that there are actual (as opposed to theoretical) “special circumstances” that “make the ban necessary to maintain production or discipline.” This appears to be a difficult standard to meet. Employers must establish a connection between the restriction and their interest in imposing the restriction.

Is it ok to ban all nonbusiness use of company email?

A total ban would be subject to the “special circumstances” test discussed above. According to the NLRB, the existence of special circumstances “will be a rare case.”

May employers impose guidelines on using nonbusiness of company email?

Yes. Employers may establish specific guidelines for nonbusiness use of corporate email.  Use of corporate e-mail for protected communications may be restricted to nonworking time. Employers also have the right to establish “uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.”  The single example provided by the NLRB is “prohibiting large attachments or audio/video segments, if the employer can demonstrate that they would interfere with the email system’s efficient functioning.”

May employers monitor their employees’ email use?

Yes. Employers may monitor computer and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for harassment or other activities that could give rise to employer liability. However, employers may not change their monitoring practices specifically in response to union or other protected activity. On that note, any modifications to an email policy that targets protected activity for discrimination is likely unlawful.

Do employers need to change their email policies now?

Purple Communications applies retroactively, so unless the decision is appealed and stayed in the interim, employers should seriously consider modifying their company email policy to comply with the decision.

Does Purple Communications apply to other company electronic communications systems like texting or instant messaging?

Currently no, but the NLRB has signaled that it might extend the reasoning in the Purple Communications decision to other forms of electronic communication in the future.

Prior Coverage:

Purple Haze: NLRB Still Unclear on Whether It Will Stop Employers From Limiting Use of Company Email to Business Purposes

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Birth announcements. Girl Scout cookies fundraisers. Leftovers in the company lounge. We’ve all probably received an email at work on these or similar subjects. It’s uncommon for an employee be disciplined for sending an email of such nature. But would that limit a company’s ability to act when employees circulate emails on more controversial topics?

This question was raised in a recent National Labor Relations Board (NLRB) decision involving the Jet Propulsion Laboratory (JPL) affiliated with NASA.  In re California Inst. of Tech. Jet Propulsion Lab, 360 NLRB 63 (Mar. 12, 2014).  Based on a Homeland Security directive, NASA began requiring JPL employees to submit to federal background checks as a condition of continued employment. Twenty-eight JPL employees who believed that the background check process violated their privacy rights filed a federal class action. The case led to a U.S. Supreme Court decision holding that mandatory compliance with the background check process did not violate the right to informational privacy.  See NASA v. Nelson, 131 S. Ct. 746 (2011).

Several of the plaintiffs felt that management did not adequately inform employees about the actual impact of the Supreme Court decision, so they expressed their view of the decision in emails to their colleagues. The emails were sent to several thousand JPL employees using NASA-owned computers and JPL email addresses. After allegedly receiving complaints about the emails, management issued written warnings to the authors of the emails. The warnings alleged that the authors had violated several work policies prohibiting, among other things, “spamming” co-workers; sending unauthorized, non-work-related emails; and implying JPL endorsement of a position on political, social, or legal issues. The authors filed charges with the NLRB claiming that JPL violated their right to engage in concerted protected activity under Section 7 of the National Labor Relations Act.

The NLRB found that JPL employees frequently circulated emails on topics like charity fundraisers and social causes. Such emails technically violated work policies, but there was no evidence of enforcement in those instances. The discipline in this case was thus suspect. Although employees have no legally protected right to use their employer’s computers to engage in protected concerted or union activity, and may be lawfully disciplined for doing so, management may not choose to enforce only work policies involving concerted protected activity.

The decision is not a prompt to start disciplining employees who offer home-baked cookies to co-workers using email. Email can be a convenient tool for building company morale. But the decision does warn against using work policies pretextually to control discussion of work matters. JPL selectively enforced its work policies to silence certain viewpoints on a work-related issue, as highlighted by the fact that JPL supervisors commented on the Supreme Court decision using their work email accounts without being subjected to discipline. Work rules commonly included in an employee manual but inconsistently enforced– like an email use policy – shouldn’t be used as a basis for silencing employees who criticize management or express dissatisfaction with work conditions.

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Ownership of contents of online email account gets called into question after account owner dies — Ajemian v. Yahoo!, Inc., 987 N.E.2d 604 (Mass. Ct. App. May 7, 2013)

Who owns the data in an online account after the account owner dies?  It’s a question that’s growing in importance as online email accounts become commonplace and cloud storage services like DropBox and Google Drive gain users.  A Massachusetts court faced that question in Ajemian v. Yahoo!, Inc., but left it unresolved.

In Ajemian, an individual (Robert) opened a Yahoo! email account for the primary use of his brother, John.  Robert shared the account as a co-user.  Several years after Robert opened the account, John died.  Robert and his sister Marianne were appointed co-administrators of John’s estate.  At the time of John’s death, Robert had not accessed the Yahoo! account for several years and had forgotten the password.

Robert and Marianne tried to get access to the contacts in Yahoo! account to retrieve email addresses of John’s friends and notify them of John’s death and memorial service.  Robert and Marianne also wanted access to the emails in the account to help identify and locate John’s assets and administer his estate.

After negotiations, Yahoo! agreed to turn over the subscriber information for John’s account to Robert and Marianne if they obtained a valid court order, which they did.  Yahoo! believed that the Stored Communications Act prohibited it from disclosing the contents of the emails in the account, however.  This prompted Robert and Marianne to sue Yahoo! in the Massachusetts probate court.  Robert and Marianne argued that the emails were the property of John’s estate and, therefore, as administrators of the estate, they were entitled to access to the emails.  Robert also argued that as co-owner of the account, he was entitled to its contents.

The probate court dismissed the lawsuit on various grounds, including that the Terms of Service (TOS) governing the Yahoo! account required the lawsuit to be filed in California.  On appeal, the Appeals Court of Massachusetts decided that the TOS was unenforceable because Yahoo! failed to prove that it reasonably communicated the TOS to Robert and that he indicated his acceptance of the TOS, such by clicking on a box that says “I Agree” (i.e., a “clickwrap” agreement).  Even if Robert had accepted the TOS, the court would not enforce the forum selection clause contained in the TOS because it was unreasonable and overbroad.   The Appeals Court sent the case back to the probate court for a ruling on the issue of access to the contents of the Yahoo! account.

LegalTXTS Lesson:  Because the contents of online accounts can be quite valuable, they should be treated as an asset in an estate planning program.  Much hassle and confusion can be avoided by making pre-death decisions about how one’s online information should be handled upon one’s death, such as entitlement of access to the accounts and ownership of their contents.  To plan effectively, one might need to take into account the terms and service corresponding to online services.  In Ajemian, for example, the terms and conditions for the Yahoo! account purportedly limited the transferability of the account and terminated the rights to the Yahoo! ID and the account’s contents when the account owner died.  If an online service has similar terms, a workaround might be needed to preserve the rights of the account owner’s estate to data stored by the service.

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