February 2015 Bar Bulletin
The Right To Use Employers' Email To Discuss Workplace Issues
By Trish K. Murphy
The National Labor Relations Board recently created a presumptive right for employees with access to email at work to use their employers' email systems to discuss terms and conditions of employment. The Purple Communications, Inc.1 decision has significant implications for all employers covered by the National Labor Relations Act, including those with nonunion workforces. Employers that maintain policies that restrict employees' use of email for NLRA-protected communications will be at risk for unfair labor practice charges.
Purple Communications provides sign-language interpretation services and assigns an email account to each interpreter. The company's email policy limited employee email use to business purposes only, a lawful restriction under then-existing NLRB precedent.
Under the Board's 2007 Register Guard decision,2 employees had no NLRA right to use employer email systems for protected concerted activity, such as union organizing or discussion of workplace concerns. Accordingly, an employer could lawfully restrict employee email use to business activity only, so long as the employer applied the policy consistently in a nondiscriminatory manner.
In Purple Communications, the Board majority reversed course and explicitly overruled Register Guard in a sharply divided 3-2 decision. The Board found that Register Guard afforded too much weight to employer property interests while undervaluing employees' core NLRA Section 7 rights.
Section 7 affords employees the right to engage in "concerted activities for the purpose of ... mutual aid or protection."3 Employees' exercise of their Section 7 rights encompasses the right to communicate with one another about union organizing and working conditions.4
The Board further concluded that Register Guard failed to understand the importance of email as a means of workplace communication. Noting the pervasiveness of work email for employee-to-employee communications in today's workplace, the decision deemed email "such a significant conduit for employees' communications with one another that it is effectively a new ‘natural gathering place'" and a forum for employees to seek to persuade fellow workers in employment-related matters.5
Emphasizing its responsibility to adapt the NLRA to the changing work environment, the Board decided that employee use of email for statutorily protected communications must presumptively be permitted by employers that have chosen to give employees access to their email systems.
Scope of the New Analytical Framework
...login to read the rest of this article.