Hunton Employment & Labor Perspectives

In Purple Communications, Inc., a divided National Labor Relations Board held that employees have the right to use their employers’ email systems for statutorily protected communications, including self-organization and other terms and conditions of employment, during non-working time.  In making this determination, the Board reversed its divided 2007 decision in Register Guard, which held that employees have no statutory right to use their employer’s email systems for Section 7 purposes.

The Board reasoned that the Register Guard decision was “clearly incorrect” and focused “too much on employers’ property rights and too little on the importance of email as a means of workplace communication.”  The Board, however, claims to have limited its decision by 1) applying it only to employees who have already been granted access to the employer’s email system in the course of their work; 2) permitting employers to justify a total ban on non-work use of email, including Section 7 use on non-working time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline; and 3) permitting employers, absent justification of a total ban, to apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.  Moreover, the decision did not address the issues of email access by third-parties or any other type of electronic communication systems. 

Employers, particularly those with “business only” restrictions on company email use, potentially face new exposure to unfair labor practice charges.  As such, employers are now pressed to reconsider their existing email communication policies, possibly through modification or repeal depending on the restrictions in place.  We have covered labor-related developments regarding email and social media communications in previous entries.