NLRB Rules Employees Can Use Employer Email to Organize

Reversing a 2007 decision upholding an employer’s right to prohibit employees from using its email system for union organizing purposes, the NLRB on Thursday issue a decision which it says acknowledges the changing way employees communicate.

At issue in the case was Purple Communications, Inc’s policy which prohibited employees from using the company’s email system for personal use. The Communication Workers of America union filed a charge with the NLRB after it narrowly lost an election bid to represent the company’s workers, who provide interpreter services. The union claimed that the company’s policy unfairly interfered with employees’ right to communicate on terms and conditions of employment.

The NLRB hinted that it might overturn its previous position on this type of employer prohibition when it sought amicus briefs on the case earlier this year.  In ruling in favor of the union, the NLRB said “[E]mployee 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 its split decision along party lines, the NLRB said that the earlier decision on this issue failed to protect workers’ right to organize and did not adequately consider the changing patterns of industrial life. While the NLRB decision seems to protect employee use during non-working time, it leaves employers wondering how to control their own email systems.  Employers have legitimate interests in protecting the integrity of their IT systems by limiting use of email to avoid viruses, security breaches and the like.

Private employers should immediately examine their acceptable use or email policies to ensure that they comply with the new decision. Public employers should recognize that the state labor boards closely follow the NLRB decisions and anticipate future rulings consistent with the Purple Communications decision.