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Company Email Can Be Used To Organize A Union

In recognition that workplace email has replaced the company’s watercooler as “the natural gathering place” for employees to communicate with each other, the National Labor Relations Board, (“NLRB”), has issued a decision that could make it easier for unions to organize workers. Purple Communications, Inc. and Communication Workers of America, AFL-

CIO, Cases 21-CA-095151, 21-RC-091531, 21-RC-091584, December 11, 2014.

In this decision, the Board reversed itself from a Bush-era Board decision, Register Guard, which allowed employers to prohibit use of company email for non-work related purposes, including organizing and union purposes, unless the employer can show special circumstances that justify specific restrictions.

Central to these decisions is the right of employees under Section 7 of the National Labor Relations Act to effectively communicate with one another at work regarding self-organization and other terms and conditions of employment. However, such right can be limited to non-work time and non-work areas. And this decision applies only to those employers who have allowed their employees access to company email systems.

As to its limiting instruction, the NLRB stated that this decision applies only to employees who have already been granted access to the employer’s email system in the course of their work (this includes telecommuting) and does not require the employer to provide such access.

As the Board stated, “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.”

Could an employer, however, ban such employee use of company email? Yes, but as the NLRB stated, “an employer may justify a total ban on nonwork use of email, including Section 7 use on nonworking time, by demonstrating that special circumstances make the ban necessary to maintain production or discipline.”

The decision does not apply to email access by nonemployees nor to any other type of electronic communication system.