We wrote back on June 19 that the National Labor Relations Board’s general counsel was urging the Board to declare that employees have a protected right to use their employers’ e-mail systems for union organizing and other non-business purposes. Well, today the NLRB did just that.
In the closely-watched Purple Communications case, the Board ruled that employees do, indeed, have a statutory right under Section 7 of the National Labor Relations Act to use employer e-mail for some non-business purposes, including for union organizing. “Consistent with the purposes and policies of the act and our obligation to accommodate the competing rights of employers and employees, we decide today that employee use of e-mail for statutorily protected communications on non-working time must presumptively be permitted by employers who have chosen to give employees access to their email systems,” said the Board majority of Mark Pearce, Kent Hirozawa, and Nancy Schiffer.
The majority said that employers might be able to justify completely banning non-business use of its e-mail system if they can identify special circumstances that make such a prohibition necessary. Otherwise, workers who have already been granted access to the e-mail system must be allowed to use it for statutorily-protected, non-work purposes during non-working time. In the majority’s view, the ruling was “carefully limited” because it limited non-business access only to those employees who already had access for business purposes.
In overruling prior precedent (i.e., the 2007 decision in The Register Guard), the NLRB said that the previous decision was "clearly incorrect" because it gave too much weight to the property rights of businesses and not enough to the right of employees to communicate in the workplace about their terms and conditions of employment. The current majority also held that the Register Guard decision “inexplicably failed to perceive” the critical and expanding role of e-mail as a vehicle for employees to engage in legally protected communications, such as those giving rise to union organizing.
It will be interesting to see how issues such as the current right of employers to monitor workers' e-mail communications as part of the normal course of business fare under the NLRB's watchful eye, since the National Labor Relations Act prohibits, among other things, "spying" by employers on the protected activities of their employees. And then there's always the question of whether courts will side with the NLRB and enforce this new ruling. If history is any predictor, we probably haven't yet heard the last from this case.
The decision is Purple Communications Inc. and Communications Workers of America, AFL-CIO, and can be found here.