NLRB Expands Employee Rights to Use Company Email To Discuss Workplace Issues and Union Organizing

In one of its most recent decisions, the National Labor Relations Board (“NLRB”) significantly expanded employee labor rights and adopted a presumption that employees who have been given access to the employer’s e-mail system are entitled to use work email during non-working time to engage in statutorily protected discussions about the terms and conditions of their employment. This new ruling further regulates an employer’s property rights while simultaneously expanding an employee’s right to discuss work conditions and engage in union organizing efforts.

In Purple Communications, Inc. and Communications Workers of America, AFL-CIO. 361 NLRB No. 26 (2014), a sharply divided NLRB ruled in a 3-2 decision that employees with access to employer email systems must be allowed to use work e-mail to communicate with their co-workers about the terms and conditions of their employment during nonworking time, absent a showing by the employer of special circumstances that justifies specific restrictions. The NLRB overturned its prior decision in Register Guard, 351 NLRB 1110 (2007), which held that an employer may prohibit employees from using the employer’s email system to discuss terms and conditions of employment ordinarily protected under Section 7 of the NLRA.

The electronic communications policy in question is common among most employers. The policy prohibited employees from using its computer, internet, voicemail and email systems, and other company equipment, except for business purposes. It also prohibited employees from using work email to engage in activities on behalf of organizations or persons with no professional or business affiliation with the company or from sending uninvited emails of a personal nature.

Purple Communications, has potentially extensive implications for employers. If an employer desires to ban non-work use of its email system, the employer must demonstrate that the restriction is justified by special circumstances necessary to maintain production or discipline in the workplace. The NLRB noted in its ruling that it would be a rare case where special circumstances justify a total ban on non-work e-mail use by employees. Additionally, although the NLRB did not prohibit employers from monitoring e-mail systems for legitimate management purposes, the decision warned employers that any changes in their monitoring practices in response to union or other protected activity will violate the NLRA.

Purple Communications applies to all employers, including non-union employers. Thus it is imperative for employers to review their electronic communication policies and work with their labor counsel to determine whether they are complying with federal labor law.


About the Author

Michael McCain is the lead employment law attorney at Eckberg Lammers. Mike exclusively represents businesses and management in labor, employment, and business law matters. He may be reached at 651-439-2878 or mmccain@eckberglammers.com.

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