Unions Get Access to Company Email under Purple Communications – Companies See Red

Section 7 of the National Labor Relations Act (the “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.” In Purple Communications, Inc., 361 NLRB No. 126 (2014), the National Labor Relations Board (the “NLRB”) expanded employees’ Section 7 rights in a 3-2 vote by ruling that employees permitted to use an employer’s email system can, during nonworking time, use the employer’s email system to carry out Section 7 activities. This ruling applies to employers whether or not the company has union employees.

The NLRB characterized its decision in Purple Communications as “carefully limited,” explaining that this protection only covers those employees who are granted access to the employer’s email system, and that the protection only applies during “nonworking time.” In practice, however, this ruling has broad application. More and more employers provide most or all of their staff with a company email address. Further, the NLRB was not specific about the definition of “nonworking time.” For employers without precisely defined breaks, this limitation will be difficult to enforce. The NLRB did provide an exception to its ruling if an employer can show “special circumstances” that make a total ban on non-work email use necessary to maintain production and discipline. Yet the NLRB provided no guidance as to what circumstances would justify an absolute ban, and, presumably, general claims that non-business communications distract employees and hinder productivity will not be sufficient to justify a total ban.

The NLRB did not decide if Purple Communications’ actual email use policy violated workers’ rights. Instead, the NLRB sent the case back to an administrative law judge to evaluate Purple Communications’ prohibition on email use based on the NLRB’s ruling, but it is likely some of the policy provisions are unlawful. In the meantime, employers should reexamine their own electronic communication policies in light of this decision.