NLRB Corrects Itself, Grants Employees the Right to Use Company Email for Labor Organizing

On December 11, 2014, the National Labor Relations Board (NLRB) issued its 3-2 decision in the case Purple Communications, Inc. and Communications Workers of America, AFL-CIO, reversing its reasoning in the 2007 Register Guard case. “We believe,” the majority explains, “that the Register Guard analysis 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 email as a means of workplace communication, the Board failed to adequately protect employees’ rights under the (National Labor Relations) Act and abdicated its responsibility ‘to adapt the Act to the changing patterns of industrial life.'”

Respondent Purple Communications provides sign language interpretation services to deaf or hard-of-hearing individuals. The company’s employees are interpreters who work at 16 call centers nationwide, where they use the company’s communications and electronic equipment. Under company policy, employees are strictly prohibited from using any of the company’s systems “…to engage in activities on behalf of organizations or persons with no professional or business affiliation with the Company” or to send “uninvited email of a personal nature.” Noting the long-standing doctrine that the workplace is the “natural gathering place” where employees would normally exchange information about working conditions and discuss options for acting collectively to improve those conditions, the Board found that employees’ ability to communicate at work via email is one sector of this “natural gathering place.” The kernel of the Board’s reasoning is that an employer’s right to regulate the use of its property for communication among employees, whether the property in question is a corkboard or a computer, is outweighed by the rights of employees under Section 7 of the NLRA to communicate and organize.

An employer’s property rights do not imply that it can prohibit gathering or communication by employees on its land. There is substantial precedent for the limitation of an employer’s ability to control its property; as the Second Circuit explained in its Republic Aviation decision, “inconvenience or even some dislocation of property rights, may be necessary in order to safeguard the right to collective bargaining.” According to the Board in Purple Communications, employees’ use of email is more analogous to their use of their employers’ land and building space. To prohibit the use of either land or email systems by employees “to organize for mutual aid without employer interference” would be to deny them the use of the “natural gathering place” for exercising their rights under the NLRA, and would thus violate their legal rights.

Under the decision, employers will remain able to monitor employees’ email communication, and to restrict such communication when the need to do so can be demonstrated (although they also note that such situations will surely be rare). Such monitoring will be lawful “so long as the employer does nothing out of the ordinary, such as increasing its monitoring during an organizational campaign or focusing its monitoring efforts on protected conduct or union activists.”

If you believe your rights under the National Labor Relations Act have been violated by an employer, please contact The Harman Firm, LLP.