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Employees May Use Email For Union Activity

By: Patrick Scully and Beth Ann Lennon

December 12, 2014

The NLRB says its 2007 decision in Register Guard was “clearly incorrect.”  Employers cannot prohibit employee use of employer email for union and other protected communications.  In other words, employer policies that prohibit non-business use of employer email systems are now invalid, absent a showing of “special circumstances”.  The Board majority stated “we will presume that employees who have rightful access to their employer’s email system…have the right to use the email system to engage in Section 7-protected communications on nonworking time.”  Needless to say, the Board rejected the argument that an employer has any valuable property interest in its email systems.  Rather, the Board defined emailing in the workplace as the modern equivalent of face to face employee communications.  While the Board indicated that an employer was free to restrict non-business emailing during “working time,” it failed to provide any safe harbor for employer monitoring of email.  Unless the employer can show it prohibits ALL NONWORK emails in working time, any attempt to restrict union/protected emails during working time will be met with a claim of discriminatory enforcement.

The NLRB has effectively handed over your email systems to the labor movement.  You should promptly revise policies that prohibit any nonbusiness use of email and you should strongly consider training your management team on the new state of the law.  Purple Communications, 361 NLRB No. 126 (December 11, 2014).

By: Patrick Scully and Beth Ann Lennon

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