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NLRB says employees can use company email to discuss pay, union organizing


If your organization has a blanket policy that prohibits workers from using the organization’s email for personal matters, it’s time to revise it.

Reason: In a highly anticipated ruling, the National Labor Relations Board ruled that employees have the right to use their employer’s email system (during off-duty time) to engage in legally protected communications, including discussing wages and even organizing a union. The ruling does not prevent employers from monitoring email.

The Dec. 11, 2014 decision in Purple Communications (21–CA–095151, 2014) split NLRB members 3-2 along party lines, with three Democrats in favor and two Republicans opposed.

The decision overturned a 2007 NLRB ruling (Register Guard, 351 NLRB 1110) that the NLRA allowed employers to forbid employees from using company email and other electronic communications systems for union organizing as long as they weren’t permitted to use email for any other nonbusiness purpose.

That was precisely the case at Purple Communications, a Maryland sign-language interpretation service. The company’s policy said employees could only use the company’s computers and email systems for business purposes. They weren’t allowed to send personal emails of any kind. A union that wanted to represent the company’s employees, alleged that the policy illegally interfered with workers’ rights under the National Labor Relations Act (NLRA).

A majority of NLRB members agreed, ruling that employees who have rightful access to their employer’s email system in the course of their work have “a presumptive right” to use the email system to discuss the terms and conditions of their employment, including the right to use email for union organizing purposes.

The decision is a “game changer,” according to the Fisher & Phillips law, and it could lead many employers to reconsider whether some employees should have access to company email at all.

What’s next? Look for the NLRB’s Purple Communications decision to be challenged in the federal appellate courts and possibly even at the U.S. Supreme Court.

Among the key issues left unanswered by the NLRB ruling: The ruling said employers can justify a blanket ban on nonwork time use of email only by demonstrating that “special circumstances make the ban necessary to maintain production or discipline.” The NLRB said this would be a “rare case,” but future court rulings will still have to draw the line on what constitutes “special circumstances” sufficient to permit employers to ban nonwork email use.



April 2014 article

Your ‘no personal use of email’ policy may soon be prohibited

Under the Obama administration, the National Labor Relations Board (NLRB) has rolled out a series of pro-union, pro-employee decisions that place new limits on employers’ workplace policies. Now comes word that the NLRB is considering another controversial move: banning blanket policies that prohibit workers from using the organization’s email for personal matters.

In a key 2007 ruling, the Bush-era NLRB said a publishing company’s “no nonwork use of email” policy was perfectly legal.

In that case (Register Guard, 351 NLRB 1110), the board said, “Employees have no statutory right to use their employer’s email system for Section 7 purposes.” (Section 7 is the part of the National Labor Relations Act that gives workers the right to take part in “concerted activities” to form a union or work together for better job conditions.)

Now Obama’s version of the NLRB may see things differently. It has agreed to take up a case in which a labor organization filed charges against Purple Communications. The workers said the company’s policy banning personal use of email unlawfully restricts their legal right to discuss their pay, benefits and other working conditions.

An administrative law judge dismissed the workers’ claim, citing the NLRB’s earlier decision in Register Guard. But the full NLRB now says it wants to revisit that 2007 ruling. It posted a notice on April 30 inviting interested parties to comment on the need for a rule change. After reviewing these comments, look for a final NLRB ruling later this year.

Online resource: Read the NLRB’s full notice.