By Kim Silvers, SPHR-CA

In a stunning reversal of a National Labor Relations Board’s (NLRB) 2007 decision, the Board ruled earlier this month that employees who use company email must be permitted to use it for union organizing and group discussions about terms and conditions of employment on non-work time.  This decision affects almost all employers, with or without union employees, that have a corporate email system.

Section 7 of the National Labor Relations Act (NLRA) guarantees employees “the right to self-organization, to form, join, or assist labor organizations… and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  The Purple Communications case became a watershed event because of the NLRB’s decision to allow employees to use the company email system for union organizing during non-work time.

The NLRB in a 3-2 decision noted that they believe their 2007 decision (Register Guard) was “clearly incorrect. The consequences of that error are too serious to permit it to stand. By focusing too much on employers’ property rights and too little on the importance of e-mail as a means of workplace communication, the board failed to adequately protect employees’ rights under the act [NLRA]  and abdicated its responsibility to adapt the act to the changing patterns of industrial life.”

The Board further stated: “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 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.”

NLRB Board Member Johnson argued on behalf of employers and against this new regulation noting: “The Board’s new rule forces employers to subsidize speech in violation of the Constitution. The First Amendment violation is especially pernicious because the Board now requires an employer to pay for its employees to freely insult its business practices, services, products, management and other employees on its own email.”

What does this decision mean for employers? If it stands then employer will be required to comply and revise policies and practices for employees who have company email access. (The decision does not require employers to grant email access to those who do not have it for work.)  In the short term, Silvers HR is going to leave our robust Technology Usage Policy template as it is written. Based on consultation with our legal counsel, we will await the possibility that the Board’s decision is appealed. In the event of an appeal, the decision could be stayed while awaiting the outcome.    If the decision is not stayed during the appeal process then it will be enforceable during the appeal process.  We will advise our retained clients as we know more about the status of this case.

A reminder – If you believe you may have union organizing attempts in your organization, it is imperative that you contact legal counsel immediately.  We can refer excellent labor attorneys who are very knowledgeable in this field.  Don’t go it alone.



© 2014 Silvers HR, LLC