NLRB decides employer email systems permitted for union organizing

The National Labor Relations Board held recently that employers must allow use of company emails for union organizing purposes during non-work periods, a decision that many employment and labor advisers say will be a nuisance for workplace communication policies.

The Board’s decision in Purple Communications, a 3-2 split among NLRB members, included a controversial change to traditional labor law and office communication guidelines under Section 7 of the National Labor Relations Act. Because email has become a “common form of workplace communications” in recent years, the Board’s decision noted that “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.”

See also: NLRB rulings pit employer policies against worker rights

According to John B. Langel, chair of Ballard Spahr’s litigation department, where he has led the firm's labor and employment group for more than 30 years, the NLRB move is not a shocker.

“No one’s surprised,” says Langel. “We’re seeing this as a major theme that the NLRB wants to do whatever it can to make life easier for unions to organize.” But, what is surprising is the use of private company property to help ease communications.

“Never has the NLRB allowed the use of private property,” Langel adds. “When you think of it just in terms of the workplace that has bulletin boards, a lot of things are posted on bulletin boards, [but] union messages were not free to be posted on bulletin boards – if you didn’t allow personal information.”

Meanwhile, Michael Lotito, shareholder with Littler Mendelson and co-chair of the firm’s Workplace Policy Institute, explains that this case “advances the rights of labor and employees at the expense of the employer's private property rights.”

Effectively, the NLRB also overruled a 2007 decision in Register Guard that held that employees can have no statutory right to use their employer’s email systems for Section 7 purposes. Meanwhile, the Dec. 11 Purple Communications decision notes that these email systems can be used to “effectively communicate with one another at work regarding self-organization and other terms and conditions of employment.”

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One key provision of the ruling is the designation of allowing employees to use their employer’s email system to communicate and read union messages during “nonworking” time. According to legal veterans, this will be something that will continue to vex employers. “In reality, it will be impossible to enforce such a standard,” says Lotito.

“It defies logic and reality that workers will only read those emails on non-work time,” explains Langel. “You lose productivity and what you are really doing is you are giving unions greater access, with a purpose.”

While it’s still unclear whether the NLRB ruling in Purple Communications will be heard in the circuit courts, Lotito explains that employers should review and access all email rules in order to “make clear there is no expectation of privacy in its use.” He notes that having consistent rules and practices are critical, such as “monitoring of company email; make sure employees know the email can be accessed for workplace investigations and after the employee has left the company or when the employee is unavailable such as during medical absences when necessary for legitimate company purposes.”

At Ballard Spahr, Langel notes that it’s probably best to review current workplace policies and “try to coordinate them in line with the NLRB.”