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NLRB: Employees Can Use Work E-mail Systems to Unionize And Discuss Work Conditions During Non-Work Time

Posted by Roscoe J. Mutz | Jan 05, 2015 | 0 Comments

On December 11, 2014, the National Labor Relations Board (NLRB) issued its decision in Purple Communications, Inc., 361 NLRB 126 (2014) holding that Section 7 of the National Labor Relations Act (NLRA) requires employers—even non-unionized employers—to allow employees, during non-work time, to use corporate e-mail systems for union organizing communications and/or to discuss terms and conditions of employment.  The 3-2 decision overturned the Board's prior decision in Register Guard, 351 NLRB 1110 (2007), which had held that corporate e-mail systems are property of the employer, which could ban or regulate, in a non-discriminatory manner, all non-business (including union-related) e-mail communications.

Specifically at issue in Purple Communications was a standard electronic communications policy that limited use of corporate e-mail to “business purposes,” and prohibited employees from using company equipment to “engag[e] in activities on behalf of organizations or persons with no professional or business affiliation with the Company.” The NLRB held that, due to the pervasiveness of e-mail use, coupled with the expansion of a remote workforce, e-mail is now the predominant means of employee-to-employee communication and is effectively a new “natural gathering place” where employees can congregate to share interests.  In the NLRB's view, because workplace communication among employees is the cornerstone of Section 7 protections, restrictions on such communication inherently and unlawfully interfere with Section 7 rights.

Although Purple Communications holds that employers may not prohibit employees from exchanging emails with non-employees and union organizers with respect to communications covered under Section 7, the decision does not require employers to affirmatively open their corporate e-mails systems to such outsiders.  Additionally, the ruling does not prevent employers from continuing to monitor corporate e-mail and computer systems for legitimate management reasons, such as to ensure productivity and preventing e-mail harassment or activities that could cause employer liabilities.  Employers may not, however, change their monitoring policies in response to union or other communications protected under Section 7 without violating the NLRA.

Because most employers' corporate e-mail policies were drafted to comply with Register Guard, the practical effect of the Purple Communications decision is that companies should review and re-write, as necessary, their policies regarding employees' use of corporate e-mail.  Also, while the NLRB expressly limited its holding to corporate e-mail, companies that offer other forms of corporate communications systems, such as corporate text messaging systems, internal social media, or intranet message boards should examine and revise policies to comport with the Purple Communications holding, given that the NLRB would likely treat these types of communication platforms the same as corporate e-mail systems.

Now is the time to review your business policies to ensure compliance with the Purple Communications holding as well as other applicable state and federal regulations.  Farhang & Medcoff, PLLC has extensive experience in labor and employment matters, including special expertise in reviewing, drafting, and revising employee handbook and company policies to ensure compliance with all state and federal regulations, including the NLRA.  If you have any legal needs related to your business, please contact us at your convenience.  We provide exceptional legal services, at very competitive rates, in order to protect your interests.

About the Author

Roscoe J. Mutz

Roscoe Mutz is an associate attorney with a broad litigation background, including...

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