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NLRB Holds Employees May Use Employer Email for Union Organizing and Other Non-Business Purposes

On December 11, 2014 by Schnader in schnaderworks.com

By Scott J. Wenner

The National Labor Relations Board this morning released its aptly-named Purple Communications decision, 361 NLRB No. 126. Last May, the Board announced that in connection with its review of the administrative law judge’s decision in Purple Communications, it would re-examine whether employers may bar employee use of company email for union organizing and other collective purposes. In its 2007 Register Guard decision, the NLRB permitted employers to bar such communications, holding that “employees have no statutory right to use the[ir] Employer’s e-mail system for Section 7 [i.e., collective] purposes.”  According to the Board in today’s decision, the Register Guard decision was “clearly incorrect.”

Summarizing its ruling, the three-member Democratic majority, which includes Member Nancy J. Schiffer, whose term expires on December 16th, declared:

“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…”

In reaching its conclusion the majority brushed aside a host of employer objections advanced by Purple Communications and in amicus briefs, including the inconsistency of the new rule with the established body of case law permitting restrictions on use of employer-owned equipment, such as telephones; the certain loss of productivity the new rule will engender; the difficulty this will create in permitting employers to lawfully monitor email use without risk of surveillance claims by employees; the threat to informational security; and the strains the free use of employer email systems will place on those systems.

Careful review and analysis of the Purple Communications decision will be required before employers can chart a way forward.