Today, in an anxiously awaited decision, the National Labor Relations Board gave unions an early Christmas present by overturning a previous ruling and providing employees the right to use their employer’s email system to actively communicate about union organizing. In Purple Communications, Inc., 361 NLRB No. 126 (2014), a divided Board held that, absent justification for a total ban on non-work related emails, employees who have been given access to an employer’s email system have the right to use that system for communications that are protected by the National Labor Relations Act. Those protected rights include the right to organize, campaign on a union’s behalf and discuss (or complain) about terms and conditions of employment.
The Board’s decision overturns its 2007 ruling in Register Guard, 351 NLRB 1110 (2007) (a Bush Administration decision), which essentially found that an employer’s property right in its email system superseded the employee’s right under the Act. In rendering today’s decision, the Board characterized its ruling in Register Guard as “clearly incorrect” and opined that the 2007 Board had “abdicated its responsibility to adapt the Act to the changing patterns of industrial life,” which include how employees communicate on a day-to-day basis.
This ruling will force employers to re-evaluate internal policies and procedures and to likely make tough choices about who should have access to their email system and how emails are to be used. Employers should review their email policies to minimize the risk of running afoul of this new ruling. (As an aside, it is always amazing to witness the extremes to which the Board will venture from one administration to the next.)