February 3, 2015
In an important 3-2 decision on December 11, 2014, the National Labor Relations Board (NLRB) held in Purple Communications that, except in very limited circumstances, Section 7 of the National Labor Relations Act (NLRA) requires employers to open their corporate email systems to union organizing by employees and to discussions among employees about the terms and conditions of employment during non-work time. The decision overturns a 2007 decision by the NLRB which held that an employer could ban all non-business email communications, including communications protected by Section 7.
In its ruling, the NLRB did carve out two limitations to the general rule set forth: “First, it applies only to employees who have already been granted access to the employer’s email system in the course of their work and does not require employers to provide such access. Second, an employer may justify a total ban on non-work use of email, including Section 7 use on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline. Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline.” Of note with respect to this second limitation, the NLRB stated it anticipated that “it will be the rare case where special circumstances justify a total ban on non-work email use by employees.”
While the decision is likely to be appealed, employers would be wise in the meantime to review their current electronic communications policies and, if need be, to revise them to comply with the rules set forth in Purple Communications. In particular, if an employer maintains a policy prohibiting all non-business email communications, the policy should be altered to limit employee e-mail use on nonworking time to Section 7 protected activities, like communications about wages, working conditions and union matters.