In Purple Communications, Inc., (NLRB 2014), the National Labor Relations Board held that employees have a right to use an employer’s email system during non-working time to engage in protected, concerted activity pursuant to the National Labor Relations Act. This decision overturned the Board’s previous ruling in Guard Publishing Co., (NLRB 2007), which held that employees do not have a presumptive right to use an employer’s email system for protected activity.
In this instance, the Communication Workers of America filed an unfair labor practice charge against Purple Communications, Inc. The charge alleged, among other things, that Purple Communications improperly maintained a ban on using “the computer, internet, voicemail and email systems” for the purpose of “engaging in activities on behalf of organization or persons with no professional or business affiliation with the company.” The Board agreed with the union, citing the changing nature of the workplace and the integral function of email for employee communication.
The Board stated that employees must be permitted to use email to organize, but that an employer could maintain a work rule prohibiting all non-work use of email if it could show that “special circumstances” justified such a rule in order to maintain production or discipline. The Board did not provide examples of these “special circumstances.” The decision does not require employers to provide internet access to employees who don’t already have it, however.
The decision is another example of the current NLRB’s willingness and eagerness to overturn longstanding precedent to make workplace organizing easier. The case could be viewed as a setback for non-solicitation policies as well, as it does not delineate between working and non-working areas. Rather, it only permits employers to restrict personal or union-based email use during non-working time. Both unionized and non-unionized employers should familiarize themselves with this decision. An appeal to federal court is possible, and MSEC will keep members informed on the status of any such appeal.