Yesterday, the NLRB issued a controversial 3-2 decision (divided on partisan lines) in Purple Communications, holding that employees are entitled to use an employer's email system for activities covered by Section 7 of the National Labor Relations Act (NLRA). Section 7 protects employees' right to engage in concerted activity for mutual aid and protection (including, but not limited to, union organizing activity). The NLRB reasoned that in the modern workplace, electronic communications are the functional equivalent of yesterday's "water cooler" conversations. The NLRB held that employees "presumptively" have a right (during nonworking time) to use the employer's email system to communicate about Section 7-covered topics if the employer gives them access to the email system for business purposes.
Can this ruling be circumvented by imposing a total ban on nonwork-related use of email (whether for Section 7 purposes or other personal, nonwork-related purposes)? One would think so, but the NLRB addressed this and basically said no. According to the NLRB, an employer may only impose a total ban on nonwork use of email (or some lesser restriction on nonwork use of email) if special circumstances make the ban necessary to maintain production or discipline (whatever that means, conveniently undefined).
As noted above, the Purple Communications decision was decided on a partisan basis with three Democrats on the NLRB issuing the decision. Two Republican members filed dissents, reasoning, among other things, that the majority's holding was an unwarranted intrusion on employers' property rights and interests. Notably, the partisan decision overrules an earlier 2007 decision, Register Guard, that had been decided by a Republican majority and held that an employer does not have to allow its email system to be used by employees for Section 7 activities.
Stay tuned for likely appeals in this case. In the meantime, employers should exercise caution in issuing any discipline and/or corrective restrictions based on employee use of email for Section 7-covered communications. The Purple Communications decision is available here.