NLRB Reverses Course, Finds that Employees have Right to use Employers’ Email for Union Organizing

In a decision made public on December 12, the National Labor Relations Board have ruled that employees have a presumptive right to use employers’ email systems on nonworking time for union organizing and other purposes that are protected by the National Labor Relations Act. In other words, if an employer provides its employees with access to a company email system, the employer must then allow employees to use that email system to discuss terms and conditions of employment and to organize. The Board, overruling its own 2007 Register Guard decision, found that it could no longer “[close its] eyes to the importance of electronic means of communication to employees’ exercise of their rights under the Act.” “[E]mail has become such a significant conduit for employees’ communications with one another,” the Board found “that it is effectively a new ‘natural gathering place’.” 

The case, Purple Communications, Inc. involved an employer's prohibition on the use of the company email system for “sending uninvited emails of a personal nature.”  Employees alleged that this rule restricted their Section 7 rights under the Act. The question presented forced the Board to confront its own prior rulings, which held that employees have no right to use other equipment such company bulletin boards, phone systems, and public address systems to organize. The Board concluded that email is materially different than those older forms of communication, insofar as email is pervasive, flexible, and high-capacity — more like face-to-face discussions than a technology. Thus, the Board adopted a new “presumption that employees who have been given access to the employer’s email system” are entitled to use that system “to engage in statutorily protected discussions” unless the employer can prove “special circumstances that justify specific restrictions.” 

Employers should be on notice that, as a result of this ruling, policies which limit or restrict employees’ email communications over a company email system will be viewed as suspect by the Board. In order to justify such a policy, the employer will be required to demonstrate “special circumstances” that make the restriction “necessary to maintain production or discipline,” but such circumstances will, in the Board’s words, be “the rare case.” All employers should review their internet and email policies to ensure that their rules comply with this new NLRB position.

With questions, please contact your Hinshaw employment attorney.