The NLRB Protects Non-Union Employees’ Ability to Complain About Working Conditions Through Electronic Mail

In the Press · February 12, 2015

The National Labor Relations Board (NLRB) has continued its aggressive posture in matters involving employees’ (ability to communicate with one another in the workplace, including the virtual workplace of the cyber world). In a December 2014 case entitled, Purple Communications, Inc., the NLRB overturned a 2007 decision, in which it had held that an employer could “lawfully bar non-work-related use of its [email] system” even if the employees were using the email system for union organizing or to engage in discussions concerning wages, benefits or other workplace issues. In Purple Communications, the NLRB ruled that employees who already have access to an employer’s email system and use the system in the course of their work, have the right to use the system to communicate about union organizing and/or about workplace and employment conditions generally. These communications are protected under Section 7 of the NLRA, which gives all employees (union and non-union) the right, among other things, to discuss the terms and conditions of their employment or organize a union with their co-workers.

Although recognizing the right of employees to use their employer’s email systems to discuss or complain about matters of mutual concern, the NLRB also recognized that this right had to be balanced against an employer’s legitimate interest in efficiently managing its business. The NLRB noted that:

  • Its ruling only applies to employees who already have access to their employer’s email system for work purposes.
  • Employees can only use the email system to discuss union organizing and workplace complaints or issues with their coworkers on non-working time.
  • There might be circumstances where an employer is permitted to “apply uniform and consistently enforced controls over their email systems to the extent that such controls are necessary to maintain production and discipline.”
  • The ruling does not apply to a third party’s use of an employer’s email system, (i.e., an employer can still limit union access to its email system).
  • An employer can monitor employees’ email use to enforce a policy that employees cannot use the system to assert their Section 7 rights during working time. An employer can also monitor its email systems for other legitimate business reasons, such as productivity, the prevention of harassment among coworkers and other activities that could expose an employer to liability.

Although the NLRB states that its ruling in Purple Communications only applies to email systems, its decision leaves no doubt that it would expand its ruling to other forms or electronic communication if the opportunity is presented. Accordingly, non-union and union employers alike should review their policies to ensure that they do not contain prohibitions or restrictions on the use of email and other electronic communication systems that are contrary to NLRB’s ruling in Purple Communications.

If you have any questions about the information presented here, need assistance with reviewing and updating policies, or would like to learn more about how Prince Lobel can address any of your employment law concerns, please contact Claudia Centomini, the author of this Alert at 617 456 8064 or ccentomini@PrinceLobel.com, or click here to contact any of the attorneys in the firm’s Employment Law Practice Group.