NLRB Gives Employees Right to Use Employers' Email Systems for Section 7 Activities!

Volume 13, Issue 19
December 11, 2014

Earlier today, in a 3-2 decision, the National Labor Relations Board (NLRB) overruled its 2007 decision in Register Guard and held that employees have a "statutory right to use their employers' email systems for Section 7 purposes." See Purple Communications, Inc., 361 N.L.R.B. No. 43. Section 7 of the National Labor Relations Act (NLRA) provides covered employees with the right "to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." Finding that its Register Guard decision was "clearly incorrect," the NLRB majority said that the "consequences of that error are too serious to permit to stand."

The NLRB's Purple Communications decision forces both unionized and non-unionized employers to allow employees who have access to company email systems for work to use such systems, during non-working time, to communicate regarding non-work-related issues, such as union organizing. In seizing control over employers' email systems, the NLRB handed labor unions a powerful tool to boost their organizing efforts.

While the Purple Communications decision does not require employers to provide email access to those employees who do not otherwise have it at work, the decision does apply to all employees covered under the NLRA who are given access to email as part of their job. Employers can attempt to justify a total ban on non-work use of its email systems only by demonstrating that "special circumstances" make such a ban necessary to maintain production or discipline.

The NLRB's decision stops short of addressing whether employers must provide email access to non-employees, such as union business agents, and to what extent employers must permit employees to use other company electronic communications systems for Section 7 activities.

While the Purple Communications decision will likely be appealed, it is currently the law of the land for all employees covered by the NLRA. Thus, covered employers need to promptly review and modify their email policies and procedures to comply with this new NLRB dictate.

If you have any questions or would like further information about this legal development, please do not hesitate to call the KZA attorney with whom you regularly work or call our office at (702) 259-8640.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.