National Labor Relations Board Decides Case About Employee Use of Email System for Protected Communications

Monday, December 22, 2014

In a recent National Labor Relations Board (NLRB) decision, Purple Communications (21–CA– 095151, 21–RC–091531, and 21–RC–091584), the NLRB ruled that Section 7 of the National Labor Relations Act (NLRA) requires employers who have otherwise allowed employees access to their email system, except in very limited circumstances, to open their corporate e-mail systems to statutorily protected communications during non-work time.  The majority of the Board concluded that the workplace is “uniquely appropriate” and “the natural gathering place” for such communications, and the use of email as a common form of workplace communication has expanded dramatically in recent years.The NLRB overturned the December 2007 decision in Register Guard, to the extent it holds that employees can have no statutory right to use their employer’s email systems for Section 7 purposes.  The NLRB believes that the Register Guard decision focuses too much on employers' property rights and too little on the importance of email as an important workplace communication.  The case is significant because Section 7 applies to all employers, not just unionized ones, effectively making the NLRB's decision applicable to almost every U.S. employer that provides a corporate e-mail system. 

The NLRB characterized its decision as "carefully limited."   The rule applies only to employees who have already been granted access to the employer’s email system in the course of their work and does not require employers to provide such access. Second, an employer may justify a total ban on nonwork use of email, including Section 7 use on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline. The NLRB specifically stated that it was not answering the question of whether or not non employees have email access and whether this decision affects any other type of electronic communications systems.

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