PERB Rules Employees May Use Employer Email for Union Communications

July 16, 2018 by Christopher Hammer

PERB, which has jurisdiction over most of California’s public sector employment, has adopted the same rule currently utilized by the NLRB for employee use of employer email systems.

In 2014, the NLRB ruled in Purple Communications holding that employees presumptively have the right to use company email on non-work time for communications that are protected by the NLRA, such as union organizing. (For details see https://www.beesontayer.com/2014/12/nlrb-recognizes-times-have-changed-employees-may-use-employers-email-for-union-talk/)

Recognizing that e-mail is a fundamental forum for employee communication in the present day, serving the same function that faculty lunch rooms and employee lounges traditionally have, PERB held that the law presumes employees who have rightful access to their employer’s e-mail system in the course of their work have a right to use the e-mail system to engage in protected communications on non-working time. (Napa Valley CCD (2018) PERB Decision No. 2563-E (Issued on 5/25/18)) The right is not absolute however. An employer can rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting employees’ rights.

Employees should be cautioned that employers generally have the right to inspect emails sent or received using employer-provided email addresses; so when possible messages that are to remain immune from employer access should be sent using the employee’s private – not employer-provided – email address.

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