Employees may now legally use an employer’s email system for organizing and collective bargaining purposes.
In its decision in Purple Communications Inc., the NLRB overturned the 2007 ruling in Register Guard that allowed employers to use sanctions against employees who used a company email system for “non-work” purposes.
The Register Guard decision raised a storm of protest from employees and unions, primarily because they felt limited personal use access of an employer email system violated their rights under Section 7 of the act that spells out the rules for union organizing.
The fight basically reprised the old battle over organizing on company time and property. In Purple, the employer claimed that, because the company owned the system and merely offered access to it to employees, it could set the rules for use of it.
In its Purple ruling, which effectively overturned Register Guard, the board said the decision was yet another adjustment of labor-management relations to the modern era.
Referring to Register Guard, the decision written by the board majority said: “The consequences of that [decision’s] error are too serious to permit it to stand. By focusing too much on employers’ property rights and too little on the importance of email as a means of workplace communication, the Board failed to adequately protect employees’ rights under the Act and abdicated its responsibility ‘to adapt the Act to the changing patterns of industrial life.’”
Specifically, the board ruled “employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems.”
The decision allowed for two exceptions to employee use of an employer system for personal emails:
- Employers must have already granted their employees access to the company email system;
- A court-approved justification by an employer of “a total ban on non-work use of email … by demonstrating that special circumstances make the ban necessary to maintain production or discipline.”
Otherwise, the board said, “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,” but the employer cannot prohibit personal use by employees, even for organizing purposes.