Nyemaster Goode, P.C.

NLRB Changes Course, Holds Employees Can Use Company Email to Organize

By Amanda Atherton

In a 3-2 decision issued last Thursday, the National Labor Relations Board held that employees can use an employer’s email system for Section 7 organization purposes. Purple Communications, Inc., and Communication Workers of America, AFL-CIO, Case Nos. 21–CA–
095151, 21–RC–091531, and 21–RC–091584 (December 11, 2014).

The Board explained that the workplace is the natural location for Section 7 communications to occur, and work email has “expanded dramatically in recent years” and is now “a common form of workplace communication.” Thus, employers are no longer justified in barring employees from using company email to organize. This overrules prior precedent established in Register Guard, 351 NLRB 1110 (2007), which held that employees had no right to use work email for Section 7 purposes on the ground that employers have a right to control access to and use of their property and equipment.

The Board in Purple Communications limited its holding in a few significant ways. First, the rule applies only to employees who are already granted access to employer email for work purposes. Employers are not required to provide other employees with email access for the purpose of organizing. Second, employers can prohibit the use of company email for organizing during work hours. Third, the right of employees to use work email to organize is only a presumptive right. Employers can rebut the presumption “by demonstrating that special circumstances necessary to maintain production or discipline justify restricting its employees’ rights.” However, the Board stated it would be a rare case when proffered circumstances—for example, protecting the email system from overload—would pose such a burden to the employer that they would outweigh the employees’ right to organize. The holding also does not extend to electronic communications other than email, and does not cover non-employees.

The opinion came down with two vigorous dissents. The first noted the decision may have troubling consequences for employers trying to abide by the National Labor Relations Act’s ban on surveillance of protected activity. The second challenged the majority’s underlying assumption that work email is simply a natural extension of the public forum at work, using some interesting graphics to illustrate its point that “email is not a water cooler.” Instead, it argued, email is far more pervasive and far-reaching than a water-cooler discussion, and can therefore much more dramatically undermine productivity.

Both dissents were adamant that work email is not critical to employees’ ability to organize. They pointed out that, as the use of work email has increased exponentially, so has the use of other web-based platforms such as Twitter and Facebook, which may be even more “effective” and “user-friendly” for organizing. Thus, they argued, employees have no pressing need to use work email to organize and, therefore, their rights cannot overcome those of the employer to control the use of its own email system.


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