Decision: In Purple Communications, the NLRB recently held in a 3-2 decision that employees have the right to use their employers’ email systems during non-work time for non-work purposes, including for the purpose of union organizing. Noting that “the use of email as a common form of workplace communication has expanded dramatically in recent years,” the NLRB reasoned that “[c]consistent with the purposes and policies of the act and our obligation to accommodate the competing rights of employers and employees, we decide today 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 ….”
The ruling overturned the NLRB’s 2007 decision in Register Guard that employees had no rights under the National Labor Relations Act to use their employers’ email system to engage in activities protected by the Act. Two board members dissented in Purple Communications. They questioned the majority’s presumption that limiting the use of an employer’s email system to business purposes posed an unreasonable impediment to self-organization. They further opined that the ruling violated the First Amendment by forcing employers to pay for speech with which they disagree.
Impact: While this is a major reversal in the NLRB’s stance on non-work use of employer email systems, the holding in Purple Communications is limited to situations where the employer has granted employees access to the employer’s email system. Further, a business may justify a complete ban on the non-work use of email if it can demonstrate that special circumstances make the ban necessary to maintain productivity and discipline. Given the change in the NLRB’s position, employers should consider having counsel review their email policies to ensure that they comply with the current state of the law.