NLRB Says Employees Can Use Your E-Mail System For Union Organizing

In a December 11, 2014 decision, the National Labor Relations Board (“NLRB” or “Board”) issued a decision in the Purple Communications case that reverses its previous rule from the Register Guard case regarding employee use of employer provided e-mail systems. Previously, the Board found that employees did not have the right to use employer-owned e-mail systems.

In Purple Communications, the NLRB has reversed course. The new rule is that employees who are provided with the ability to use the employer’s e-mail system are presumptively entitled to use that system to communicate regarding union organizing and other protected topics while on non-working time. The Board provided some explanation of the contours of this new rule, which are discussed below.

This right applies only to those employees who are given access to use of the e-mail system by the employer. The employer is not required to permit employees to use its e-mail system. But for those who are given the ability to use the e-mail system, the right to use it for communicating about wages, hours and working conditions – during non-working time – applies.

The Board says this is a “presumptive” rule and that an employer who can demonstrate “special circumstances” that justify a ban on all non-business related communications as necessary to maintain production or discipline can prohibit all such e-mail communications. It is clear from the Board’s decision that this “special circumstances” exception will be narrowly viewed, and very hard to establish.

The Board stated that its decision does not prevent employers from continuing their usual monitoring of their computer and e-mail systems for legitimate business reasons, such as “ensuring productivity and preventing e-mail use for purposes of harassment or any other activities that could give rise to employer liability.” The Board responded to concerns that an employer who monitors e-mail communications could subject itself to charges of surveillance by stating that allegations of surveillance could be handled under established rules. For example, established law holds that employees who choose to openly engage in union activities at or near the employer’s premises cannot be heard to complain when management observes them.

Similarly, an employer’s monitoring of its e-mail system will be lawful “so long as the employer does nothing out of the ordinary, such as increasing its monitoring during an organizing campaign or focusing its monitoring efforts on protected conduct or union activities.” In addition, employers are not prevented from notifying employees that it reserves the right to monitor e-mail use for legitimate business reasons, and that employee do not have an expectation of privacy in their communications transmitted via the employer’s system.

Notably, and perhaps ominously, the Board noted that its decision in Purple Communications do not address e-mail access by non-employees, or the use of other types of electronic communication systems.

In summary: (1) employees who have been granted use of the employer’s e-mail system may use it to engage in protected communications during non-working time; and (2) employers may continue their usual monitoring practices and may continue to notify employees that they do not have an expectation of privacy in messages sent via the employer’s system.

We offer a few concluding thoughts. Employers should not overreact. As a practical matter, employees who are concerned over wages, hours and working conditions have been e-mailing each other about those concerns for years. This has not resulted in a ton of organizing activity, or a great deal of employer discipline. We doubt the Purple Communications decision will change either of those realities.

Be careful when making disciplinary decisions based on e-mail use. It is certainly fine to discipline for harassing messages, or engaging in personal communications during working time, and for a host of other reasons. As with social media generally, however, an employer should not discipline employees because of communications protected by the National Labor Relations Act which are engaged in during non-working time.

It may be worthwhile to consider which employees are given access to your system. Are there groups of employees who do not need such access for job-related reasons? If so, might it be wise to remove their access? The answer will of course be different for different employers. But the question is worth asking.