This post was contributed by Bruce D. Bagley, an Attorney in McNees Wallace & Nurick LLC’s Labor & Employment Practice Group in Harrisburg, Pennsylvania.
Most employers have policies or work rules limiting employee use of Company e-mail systems to "business purposes." Many employers have policies or work rules specifically prohibiting employees from using Company e-mail to solicit for outside organizations (such as soliciting fellow employees to join a union). In Purple Communications, Inc., 361 NLRB No. 126, issued on December 11, 2014, the National Labor Relations Board (NLRB) decided that employees must presumptively be permitted to use their employer’s e-mail system, during non-working time, to communicate with each other about workplace issues, including but not limited to union organizing efforts.
In reaching this determination, the three Democrats on the Board, over the vigorous dissent of the two Republican members, reversed the 2007 NLRB Decision in Register Guard, which had held that employees have no statutory right to use their employer’s e-mail system for engaging in union or other activities protected by Section 7 of the NLRA.
The Purple Communications majority premised its decision on what it deemed "the importance of e-mail as a means of workplace communication," noting that "e-mail remains the most pervasive form of communication in the world." According to the majority, "the workplace is ‘uniquely appropriate’ and ‘the natural gathering place’ for such communications, and the use of e-mail as a common form of workplace communication has expanded dramatically in recent years." The majority concluded that, if employees are already provided access to their employers’ e-mail systems, then they must also be permitted to use these systems, during non-working time, for union organizing purposes and for any other protected communications about terms and conditions of employment.
It is significant to note that the Board’s Decision applies to employees, not non-employees, and does not present outside union organizers with the right to use the employer’s e-mail system. It does not require employers to now provide e-mail access to employees who do not already have such access. Nor does the decision reach any employer communication system other than e-mail. And while the decision announces a "presumption" that employees have the right to use the e-mail system for protected communications on non-work time, it also states that employers can at least try to assert "special circumstances" that would allow a ban on such use of e-mail if necessary to maintain production or discipline. (Editor’s note: good luck trying to establish sufficient "special circumstances" that would satisfy the present Board!).
Notwithstanding Purple Communications, it is still permissible for employers to prohibit employee use of employer e-mail systems for non-work-related activities during working time, including communications regarding union or other Section 7 activities. But that would be the case only if the employer consistently enforces such rule against employee use of e-mail during working time for other non-work-related communications as well (which most employers do not). Put another way, if an employer does not monitor and prohibit content of non-work-related e-mail sent or received during working time, it similarly cannot lawfully prohibit the use of e-mail during working time for union-related or other Section 7 protected communications.
This NLRB case raises significant issues for virtually all employers, unionized and non-unionized. No doubt there will be appeals from the Board’s Decision to the federal appellate courts, but for the immediate future at least, Purple Communications is the law of the land. If you have questions or concerns about how this Decision may impact your policies or work force, particularly your policies regarding e-mail and other electronic resources, "Bring Your Own Device," solicitation, social media, handbooks, etc., please feel free to contact the undersigned or your usual attorney contact at McNees Wallace & Nurick.