Management's Workplace Lawyers

NLRB Reiterates that Email May Be Used for NLRA Protected Communications.

March 31, 2017

Despite a request to reconsider its decision, the National Labor Relations Board has reaffirmed its position that employees have a presumptive right to use an employer’s email system to engage in union-related and certain other protected communications under the National Labor Relations Act.

The NLRA protects employees’ rights to communicate about terms and conditions of employment, including in connection with union organization and other union-related matters. In the 2014 case of Purple Communications, Inc. (Purple Communications I), which we previously discussed in an E-Lert, the NLRB ruled that employee use of email for statutorily protected communications during nonworking time must “presumptively” be permitted by employers that have chosen to give employees access to their email systems. In so holding, the Board overruled its 2007 Register Guard decision, which had stated that employers can prohibit all non-business use of their email systems, including for communications protected by the National Labor Relations Act. 

The employer subsequently asked the Board to reconsider its Purple Communications I decision. In a decision issued on March 24, 2017, Purple Communications, Inc., however, the Board again rejected the employer’s position based on its reasoning in Purple Communications I. This new decision reinforces the need for employers to be thoughtful in implementing email policies and monitoring employee email use.