The Sophisticated Employer Blog

In light of a recent ruling by the National Labor Relations Board (NLRB), employers may want to quickly review their policies related to employees’ use of email.

On Dec. 11, in Purple Communications, Inc., the NLRB ruled that employees can use their employer’s email system for union organization. This important decision reversed the NLRB’s previous ruling in Register Guard.  

Section 7 of the National Labor Relations Act (“NLRA”) guarantees employees “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The central issue in Purple Communications, Inc. was the right of employees under Section 7 to effectively communicate at work regarding self-organization and other terms and conditions of employment.

In pertinent part, the NLRB concluded:

“Consistent with the purposes and policies of the Act and our obligation to accommodate the competing rights of employers and employees, we decide today 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.”

Importantly, the NLRB emphasized that its ruling is “carefully limited.” It only applies to employees who have already been granted access to their employer’s email system in the course of their work and does not require employers to provide access to their email systems.

In addition, employers may justify a “total ban” on non-work use of email by showing that “special circumstances” make the ban necessary to “maintain production or discipline.” Absent such justification, employers may apply uniform and consistently enforced controls over its email system to the extent necessary to maintain production and discipline.

Employers should immediately and carefully review any policies applicable to the use of their email systems and determine whether modifications are necessary.