A divided National Labor Relations Board held today that employees who are given access to their employers’ e-mail systems have a right to use those e-mail systems for nonbusiness purposes, including union organizing communications, during nonworking hours. In a case involving Purple Communications, Inc., a California company which provides sign-language interpretation services to the deaf, the Board held that the company’s policy prohibiting employees from using the company e-mail system to engage in activities “on behalf of organizations or persons with no professional or business affiliation with” the company impermissibly infringed upon the employees’ right to discuss the terms and conditions of their employment, and, as a result, violated the National Labor Relations Act.
The ruling overturned the Board’s previous decision in Register Guard, which held that an employer could prohibit its employees from using the employer’s e-mail system for union organizing purposes so long as any such prohibition was not applied discriminatorily (i.e., so long as union activities were not specifically singled out for prohibition). In a slight nod to employers, the Board did provide a carve-out within today’s holding which would allow employers to demonstrate that special circumstances necessary to maintain productivity or discipline justify restricting employee communication rights, and thus avoid liability for unfair labor practices. Make no mistake about it, though: this will be a high bar for employers to meet. Employers should consider seeking legal advice to ensure that their e-mail policies comply with all applicable laws.
The Board’s decision today opens up a new battleground for employers in the ever-expanding war against union overreach: the employers’ own e-mail systems! Where will the Board strike next? Stay tuned.