NLRB Recognizes Times Have Changed: Employees May Use Employer’s Email for Union Talk
December 15, 2014 by Susan Garea
The NLRB has ruled that employers may not prohibit employees from using company email systems to engage in union communications during nonworking time. In Purple Communications Inc., issued December 11, 2014, the Board held that employees presumptively have the right to use company email for communication like union organizing that is protected by federal and state labor statutes if done on non-working time. An employer may rebut that presumption by demonstrating that special circumstances necessitate a total ban on non-work communication (or lesser nondiscriminatory restrictions) to maintain production or discipline, but this will be a difficult standard to meet.
Purple Communications overturns the Board’s 2007 Register Guard decision which held that employers could prohibit employees from using its email system for statutorily protected communication, as long as it did not apply its ban discriminatorily, analogizing to cases upholding bans on the use of employer-owned equipment like fax machines or public address systems. In repudiating Register Guard’s holding, the Board embraced the widespread criticism of that decision for improperly elevating employer property interests above employee rights to engage in collective action. In doing so, the Board emphasized the ubiquity and importance of email communication at the workplace and reaffirmed, 1) that communication amongst employees is foundational to their rights under the National Labor Relations Act, and 2) that the workplace is particularly well suited for employees to have such conversations. For more on employee rights to organizing activities you can visit the NLRB website.
The Board’s new approach to email mirrors its long-standing approach to union solicitation and distribution by employees at the workplace on non-work time set forth in the Supreme Court’s Republic Aviation decision. Just as employees generally have the right to discuss unionization at the “water cooler” or other gathering places at work on non-work time, the Board has logically applied that reasoning to email.
The Board’s decision is limited to employers who grant employees access to their email system; it does not require employers to provide employee email access.
In addition to barring employer discipline of employees for using work email to engage in union activity during nonworking time, this new ruling also gives employees and unions a strong basis to challenge employer bans on employee use of email for all non-work purposes. This decision should be particularly useful in organizing and is a positive element in the current legal activity and attempts to limit employee rights to organize. Beeson, Tayer & Bodine (BT&B) is a labor and employment law firm located in Sacramento and Oakland. You will find a summary of some of the legal issues facing unions on our website. Please contact us if you have questions or need assistance related to employment and job rights in California.
The material on this website is provided by Beeson, Tayer & Bodine for informational purposes only and does not constitute legal advice. Readers should consult with their own legal counsel before acting on any of the information presented. Some of the articles are updated periodically, and are marked with the date of the last update. Again, readers should consult with their own legal counsel for the most current information and to obtain professional advice before acting on any of the information presented.