The National Labor Relations Board has decided, 3-2, that employees have a right to use their employers’ e-mail systems for communicating about union organizing during breaks and other nonworking time.
The 76-page decision, which favors labor unions, overruled a seven-year-old board ruling which had found the opposite. In doing so, the Board gave preference to employees’ communication rights over employer property rights. It invalidated a company policy prohibiting employee use of employer-provided email system for non-work-related messages.
It applies only to employees who have already been granted access to their employer’s email system in the course of their work, and does not require employers who have not done so to now provide such access.
The ruling could be appealed in the federal courts.
The three Democrats on the five-member board voted in favor of the decision, while the two Republicans voted against it. All five were appointed by President Obama.
The Board, based in Washington, D.C., is an independent federal government agency that enforces the National Labor Relations Act (NLRA), a 1935 federal statute that seeks to protect employee rights to act together in “protected group activity” to try to improve their pay and working conditions. One of the principal activities protected by Section 7 of the federal law is employees’ efforts to organize a union in their workplace.
The NLRB’s email rights ruling, issued on December 11, 2014, stemmed from a case that the Communications Workers of America, AFL-CIO (CWA) union filed two years ago after it failed in its attempt to organize employees of Purple Communications, Inc., in Rocklin, Calif., a company that provides interpreting services for the deaf and hard of hearing.
The union argued that prohibiting Purple Communications’ employees from using the company’s email system for non-business purposes, and on behalf of organizations not associated with the company, interfered with the CWA’s organizing efforts and the employees’ protected speech under the federal law.
The company maintained that its email restrictions were aimed at cutting down on workplace distractions. Businesses argued that reversing the 2007 ruling known as Register Guard could violate employers’ property rights, congest employers’ email servers, diminish employee productivity, and infringe on companies’ First Amendment rights not to communicate the unwanted messages of others. They also said that employees have personal email accounts that they could use on their own devices for non-job related purposes.
Register Guard was also decided by a 3-2 vote during the Bush II administration, on December 16, 2007, with the three Republican board members voting in favor and the two Democrats voting against the decision. In that case the NLRB had ruled that employers could prohibit employees from using company email for union purposes even if they allowed employees to use the email for other personal, non-commercial purposes.
The CWA argued to the NLRB that if an employer grants its employees access to the company’s email system, employees should be able to use it to discuss workplace issues, including those related to unionization.
“Employee 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,” the majority opinion said. “Employees’ exercise of their Section 7 rights necessarily encompasses the right effectively to communicate with one another regarding self-organization at the jobsite.”
The NLRB set two limitations to this new employee email right under Section 7 of the NLRA:
(1) Companies are not required to provide email access to employees at all. Rather, the right attaches once the employer has granted that access; and
(2) An employer may justify a comprehensive prohibition of non-work-related emails by demonstrating that special circumstances make the ban necessary to maintain production or discipline.
One of the Republican dissenters, Board Member Philip A. Miscimarra, wrote a separate opinion stating: “Even if one could identify a colorable need for employees to use an employer’s business email system to engage in union organizing and other concerted activities, I believe the majority’s creation of such an employee right impermissibly fails to accommodate the substantial employer property rights associated with its computer resources, which typically involve substantial acquisition and maintenance costs.”
The other Republican dissenter, Board Member Harry I. Johnson, III, wrote in his own opinion, that “in light of the vast growth of personal devices and social media accounts, not to mention face-to-face and other traditional methods of communications, employees have numerous options available to them in order to communicate with one another about their wages, hours, and working conditions. Given the availability of all of these fora, employees do not need to use their employer’s email system to communicate with one another on these issues.
“It is easy for an employee during his or her nonwork time to send a text message, or make a phone call, or access the internet via smartphone in order to send a message through a social media site and communicate with colleagues, or even to send an email on a personal email service,” Johnson added.
Unless reversed on appeal, the Purple Communications ruling by the NLRB will require employers to review their personnel policies and modify any email-use policies that universally prohibit non-work-related messaging through employer-provided email systems.
The NLRB’s Purple Communications decision, Case No. 21-CA-095151, can be accessed free online at:
