NLRB Rules That Employees Have Presumptive Right to Use Company Email for Union Organizing

Eric Paltell
Eric Paltell
12/12/2014

In a much anticipated decision that came as no surprise, on December 11, 2014, the NLRB ruled that employers generally must allow employees to  use the company’s email system to organize a union, solicit complaints,  criticize managers, and otherwise discuss terms and conditions of employment.  Purple Communications, Inc.  361 NLRB No. 126 (2014).  Although the ruling has been expected for some time, many employers will need to review and likely revise their email usage policies to comply with the new standard.

In Purple Communications, the employer had a computer usage policy which stated, in relevant part:

Employees are strictly prohibited from using the computer, internet, voicemail and email systems, and other Company equipment in connection with any of the following activities:

2. Engaging in activities on behalf of organization or persons with no professional or business affiliation with the Company.

5. Sending uninvited email of a personal nature.

After losing a representation election, the Communications Workers of America union filed objections with the Board, alleging that this computer usage policy interfered with Section 7 rights and therefore violated Section 8(a)(1) of the NLRA.

The NLRB agreed with the union and found that the computer usage rule interfered with employee rights to communicate with each other regarding terms and conditions of employment.  The Board went on to set forth the following new standard for employer email usage policies:

[we] will presume that employees who  have rightful access to their employer’s email system in the course of their work have a right to use the email system to engage in Section 7-protected communications on nonworking time. An employer may rebut the presumption by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights. Because 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. In more typical cases, where special circumstances do not justify a total ban, employers may nonetheless apply uniform and consistently enforced controls over their email systems to the extent that such controls are necessary to maintain production and discipline.

In sum, the NLRB reversed past precedent and held that employees who have access to company email as part of their job have a presumptive right to use the email system during non-working time to discuss and complain about wages, benefits, working conditions, and other terms and conditions. They also have the right to solicit colleagues to join a union, partake  in a class action lawsuit, or engage in  a walkout (like the recent one-day fast food strikes).  While an employer may be able, in some circumstances, to ban non-work related use of the company’s email system, the Board made clear it will be the rare case where it will permit such a limitation. Moreover, trying to enforce a total ban on personal email will be difficult, and will likely so damage employee morale that it may invite the very union that such a policy was intended to avoid.

Although some prognosticators are depicting this decision as a radical shift that will transform the workplace, I’m not convinced its that big a deal. With the advent of social media, employees have a multitude of means by which to communicate with one another without using the company email system.  Additionally, since the NLRB expressly stated in its decision that an  employer still has the right to monitor its email system, a savvy union or class-action organizer will not use the company system for such purposes.  Nevertheless, the Board’s decision in Purple Communications will certainly give union organizers and other protagonists an opportunity to reach an entire workforce with only minimal effort.  I can easily see a blast email from an employee organizer  that goes something like this: “Interested in learning more about how a union can get you better wages and benefits?  If so, text me at [personal cell number].”

Purple Communications will likely be appealed, but for now its the law of the land.  Employers would be well-served to review their email usage policies to make sure they are in compliance with the Board’s new standard.

 

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