We reported earlier that the National Labor Relations Board had been considering changing its previous position that “employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 purposes.” The NLRB’s position in this regard was established in 2007, under the NLRB’s ruling in Register Guard. Today, in Purple Communications Inc. and Communications Workers of America, AFL-CIO, the NLRB overruled the Register Guard ruling as “clearly incorrect” and held that employees have a right to use their employers’ email systems for nonbusiness purposes, including communicating about union organizing. Specifically, the NLRB held “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 NLRB] therefore overrule[s] the Board’s divided 2007 decision in Register Guard to the extent it holds that employees can have no statutory right to use their employer’s email systems for Section 7 purposes.” It is important to remember that this ruling applies to employers whether or not they have union employees.
At issue in Purple Communications and Communications Workers of America, AFL-CIO, was the right of employees under Section 7 of the National Labor Relations Act to effectively communicate with one another at work regarding self-organization and other terms and conditions of employment. In deciding the case, the NLRB said the workplace is “uniquely appropriate” and “the natural gathering place” for such communications, and the use of email as a common form of workplace communication has expanded dramatically in recent years.
The NLRB was careful to limit its holding as follows:
- Only applies to employee who have already been granted access to the employer’s email system in the course of their work and does not require an employer to provide such access;
- An employer may justify a total ban on nonwork use of email by demonstrating that special circumstances make the ban necessary to maintain production or discipline;
- Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline;
- The ruling does not address email access by nonemployees;
- The ruling does not address any other type of electronic communications systems.
Our Labor Group plans a more thorough analysis of the NLRA issues, as employers must now take certain steps or risk potential Board action.
In light of this decision, employers must reexamine their existing electronic communication, bring your own device (BYOD), and social media policies which may have been adopted post 2007. This is especially true if any of those policies do not permit, or prohibit, an employee’s use company-provided communication systems for nonwork-related purposes, such as to fulfill certain union-related purposes or other “protected concerted activities” under for Section 7 of the National Labor Relations Act. Similarly, employers will now need to take caution into how they monitor company email and what actions are taken in connection with employee use of the company’s email systems.