Republican-led NLRB is Ready to Reconsider Employee Email Rights

Kristi Pronovost Merit Shop Spokesman Blog

By: Brent Sailhamer, Director of Government Affairs

In 2014, the National Labor Relations Board (NLRB) issued a ruling in a case that would have profound effects on workers seeking to organize their company. In Purple Communications, Inc., the Board’s 3-to-2 decision had a substantial impact on the ability of unions to organize by holding that employees could use employer email to discuss unionization, among other workplace issues. This decision equipped unions with a significant organizing tool: communicating with employees via work email.

In Purple Communications, Inc., the court found a company’s communications policy to be unlawful. Employees under the company’s policy were “strictly prohibited from using the computer, internet, voicemail and email systems, and other Company equipment in connection with…engaging in activities on behalf of organizations or persons with no professional or business affiliation with the Company.” After the election results at two of the employer’s facilities, the union filed objections to this communications policy, which they stated had interfered with the election by impeding the employees’ freedom of choice. Additionally, they filed an unfair labor practice charge, claiming the policy restricted the employees’ rights to engage in protected, concerted activity under the National Labor Relations Act. Using precedent set in Register Guard, an administrative law judge dismissed the objections. However, on appeal, the NLRB issued a 3-2 decision, overturning the Register Guard precedent and holding that the employees’ right to communicate in the workplace included protected communications on nonworking time, which “must be permitted by employers who have chosen to give their employees access to their email systems.”

Now, four years later, the NLRB has revisited this decision. The Board recently invited public input on whether workers should have the right to use company email systems to discuss unionization. Just yesterday, the NLRB requested amicus briefs, which allow the public to weigh in on the possibility of overturning Purple Communications, Inc., a 2014 Obama-era ruling. An Amicus brief, also known as “friend of the court,” refers to a legal brief, which can be filed by a person with strong interest but who is not party to a case, to educate the court and use their expertise or familiarity with the issue to raise awareness about some aspect of the case that the court might otherwise miss.

The Board, which has been under Republican control since last year, is expected to scrap the Purple Communications, Inc. decision and allow employers to ban workers from using their company emails for personal communications that are not directly related to their work duties. Many lawmakers and attorneys contend that the issue boils down to workers misusing company property for communications that fall outside the realm of their job responsibilities. The decision is also credited with favoring unions and employees interested in organizing in the workplace. However, critics are pushing back, maintaining that the 2014 decision adequately protects employees’ rights.

August 2, 2018