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ALERT: Email Error - National Labor Relations Board Allows Use of Employer Email for Union Organizing
December 11, 2014
In a dramatic reversal, the National Labor Relations Board (the “Board”) today ruled that employers may not restrict employees from using the employer’s email to communicate with fellow employees about union matters, or other matters protected by Section 7 of the National Labor Relations Act (the “Act”).  In doing so, the Board ruled that a 2007 decision that allowed such a restriction was “clearly incorrect.”
Section 7 of the Act permits employees to engage in concerted activities regarding the terms and conditions of employment.  In general, employers must protect and accommodate those rights, though the United States Supreme Court has recognized that an employer’s property rights must also be recognized and that the proper balance will result in “as little destruction of one as is consistent with the maintenance of the other.”  Hudgens v. NLRB, 424 U.S. 507, 521 (1976).  In accordance with this principle, employers can restrict the use of break rooms, bulletin boards, and other work areas so long as the restriction is consistent and necessary to maintain production and discipline.  In its 2007 decision in Register Guard, 352 NLRB 1110 (2007), the Board applied this doctrine to permit an email policy that prohibits the use of the employer’s email system for non-work matters, such as union activities.
Now, in Purple Communications, Inc., 361 NLRB No. 126 (2014), the Board has overruled its position.  The Board considered an employer’s electronic communications policy that prohibited employees from “[e]ngaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company” or from “[s]ending uninvited email of a personal nature.”  Recognizing that such a policy would have been permissible under the Register Guard standard, the Board (in a 3-2 vote) reversed itself saying that the earlier decision “focus[ed] too much on employers’ property rights and too little on the importance of email as a means of workplace communication.” The Board distinguished email from other forms of communication by noting that an employee’s use of email would not hamper the ability of any other employee from using email (as opposed to a bulletin board that has a finite amount of space).  Furthermore, the Board decided that “email has become such a significant conduit for employees’ communications with one another that it is effectively a new ‘natural gathering place’.”  In short, email is so common, you cannot restrict employees from its use any more than you can restrict employees from talking to one another.
The Board limited the rule to employees who have access to email. Employers are not required to provide email access to anyone.  And, employers can “demonstrate[e] that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.”  But the Board cautioned that the special circumstances will not be easily proved and will require consistent application.  Lastly, the Board’s decision does not “prevent an employer from establishing uniform and consistently enforced restrictions, such as prohibiting large attachments or audio/video segments, if the employer can demonstrate that they would interfere with the email system’s efficient functioning.”
The take away for employers is to review your electronic use policies and revise them so that they no longer prohibit non-work communications or be prepared to demonstrate why an exception is necessary (and be prepared to show that all non-work communications are prohibited).

Labor & Employment Law Eric E. Kinder