Recently, the National Labor Relations Board (NLRB), in a 3-2 decision, in Purple Communications, Inc. and Communications Workers of America, AFL-CIO. Cases 21-CA-095151, 21-RC-091531, and 21-RC-091584, considered the right of employees under Section 7 of the National Labor Relations Act (Act) to effectively communicate with one another at work regarding self-organization and other terms and conditions of employment. Ruling on this question, the NLRB concluded 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." In doing so, it overruled the NLRB's divided 2007 decision in Register Guard, 351 NLRB 1110 (2007), to the extent it holds that employees can have no statutory right to use their employer's email systems for Section 7 purposes because its "analysis fails 'to adapt the Act to changing patterns of industrial life'"; the NLRB majority in Register Guard accepted the employer's contentions there that an email system is analogous to employer-owned equipment and that prior cases had established that employers could broadly prohibit nonwork use of such equipment. It further found it appropriate "to apply our new policy retroactively.
The NLRB confirms that its "decision is carefully limited": "First, it applies only to employees who have already been granted access to the employer's email system in the course of their work and does not require employers to provide such access. Second, an employer may justify a total ban on nonwork use of email, including Section 7 use on nonworking time, 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." With respect to such "special circumstances," the NLRB stated that "[b]ecause limitations on employee communication should be no more restrictive than necessary to protect the employer's interests, we anticipate that it will be the rare case where special circumstances justify a total ban on nonwork email use by employees." It further confirms that it is not addressing "email access by nonemployees, nor do we address any other type of electronic communications systems, as neither issue is raised in this case."