The Purple Standard

Published:  September 24, 2018

[This document is underlined when referring to the case and italicized when referring to the doctrine.]

In early August, the National Labor Relations Board announced that it was considering whether to deviate from the precedent of 2014’s Purple Communications, Inc. decision. To that end, the Board invited interested parties to submit amicus briefs on whether the Board should adhere to, modify or overrule the Purple Communications doctrine.

The Purple Communications doctrine was formed from a decision in a labor law case in 2014. In the case, the Board issued a 3-to-2 ruling that overturned the previous Register Guard precedent from 2007. The previous Register Guard precedent ruled that an employer’s email system is the employer’s property, and therefore the employer could ban all non-business email communications, including communications that would be considered protected concerted activity under Section 7. The Purple Communications, Inc. decision overruled the Register Guard precedent. The Board ruled that employers are required to allow employees to use corporate email systems for union organizing and other protected concerted activity, except for in very limited circumstances. Notably, the 3-to-2 decision was split down party lines. The three Board member majority were all Democrats, and the two dissenting members were Republicans (albeit both Republicans nominated by President Obama). This ruling had wide reaching impact. In the four years since Purple Communications, employers had to scramble to amend their internet and email systems use policies to ensure compliance with the NLRB’s policy. This was particularly important because the NLRB General Counsel’s 2015 guidance memorandum, regarding its interpretation of the Lutheran Heritage Village-Livonia case, which signaled aggressive enforcement for maintaining policies that “chill” employees’ exercise of rights under Section 7 of the NLRA.

Now, the current composition of the NLRB has overruled the Lutheran Heritage “Chilling” standard and imposed a “reasonably construed” standard in the 2017 Boeing Company, and the Board is signaling that they’re also considering overturning Purple Communications.

This poses a serious question: Should I revise (or re-revise) my handbook to adopt the NLRB’s current approach?

This is a difficult question to answer. While some employers may want to take an aggressive stance and amend their current handbooks, it is also worth noting that the NLRB’s composition changes rapidly. What was lawful in 2006 became unlawful in 2007, and will likely be lawful again soon. But it also may become unlawful again soon thereafter. The decision ultimately depends on how risk averse your company wants to be. Keeping the Purple Communications-compliant policy likely ensures you will remain in compliance with the law. Purple Communications-compliant policies are still lawful if Purple Communications is overturned and if/when a similar standard is adopted again. However, non-Purple Communications-compliant policies will become lawful if Purple Communications is overturned, but will not be lawful if/when a similar standard is adopted again.

If you would like more information on the Purple standard, or have any questions on any aspect of labor and employment law, please contact the attorneys at Royal, P.C.