All employers, union and non-union, will be affected

The National Labor Relations Board has just held in Purple Communications, Inc. that “Employees’ use of email for statutory protected communications on non-working time must presumptively be permitted”. Thus, all employers who permit employees on non-working time to use the Company’s email system will now have to permit any employee to post pro-union emails announcing meetings, promoting membership, and possibly even distributing representation cards and soliciting the signatures on the email system.

The decision of the NLRB applies both to unionized and non-unionized employers if such employer allows employees to use its email system at work for non-work subjects. So, if your employees have access to the Company email system and you have ever allowed the employees to use that system to send or receive non-work related emails, you must now permit your employees to use the Company email system to communicate with their co-workers about union-related issues.

This Alert will not discuss the predecessor cases, which the NLRB has now reversed, but the Purple Communications, Inc. decision is literally revolutionary.

There are other critical aspects that must also be considered, including whether you allow employees to use email during working time to communicate on private matters. If you as an employer do that, you will now have to permit your employees on working time to communicate his or her interest in unions and promote union representation and activities.

The decision is based upon the Board’s belief that the most frequently used method of employee communication is via emails. As a result, employers have to recognize that, if they are going to permit their employees to use the Company email system for non-work related activities and communications, it is a violation of the employees’ Section 7 rights to support or reject unions to not be permitted to communicate through the Company’s email system.

As an attempt to address the loud complaints of employees, the majority of the Board stated that there may be certain circumstances in which restriction or prohibition of using the Company’s email system may be permissible, but those restrictions will have to pass a strict test that such restriction is necessary to “maintain production and discipline”. You can expect that this burden will be a hard one to meet. Indeed, the Board also stated “It will be a rare case where special circumstances justify a total ban on non-work email use by employees”. 
You should also recognize that the Board’s decision also covers the employee’s right, protected right under the National Labor Relations Act, to talk about their terms of employment, including wages, hours, and working conditions with other employees on the employer’s email system. Trying to ban or prohibit such discussions or disciplining because such discussions occur is very likely to result in a sustained Unfair Labor Practice charge for interfering with employees’ Section 7 rights under the Act.

There are several steps that employers, whether union or non-union, should take immediately to address this significant decision.

  • Review all existing email policies and determine whether or not you currently permit and/or want to permit the non-work related use of your email system.
  • If you have distinct policies governing the use of your email system, you need to review those policies with regard to the way in which they describe or limit such usage.
  • You need to make sure that employees have notice and that they understand what their permissible uses are.
  • You need to make sure that employees have notice of and understand that they have no right to privacy in using the Company’s email system, including any attachments used with that system.

Because this issue is so significant, we strongly recommend that you consult with appropriate employment counsel as soon as possible to determine exactly what your current practices are, what you want them to be, and what may be permissible for you to do.