NLRB Rules Employees Have The Right To Use Employer E-Mail Systems For Union Activity

Written by Robert A. Wiesen

In a decision published December 11, 2014 involving the Purple Communications Company, the National Labor Relations Board ruled that employees have a right to use employer email systems to communicate about unions and other protected concerted activities during non-working time. Any limitation on this newly-created right is presumptively unlawful. To overcome the presumption, the employer must prove that "special circumstances" make the limitation necessary to maintain production or discipline. The NLRB consistently has rejected this defense in similar contexts over the years.

The ruling is especially significant because it applies to all employers, including those that consistently prohibit use of email systems for all non-work purposes. The case was decided along party lines with the three Democrats on the five-member Board voting to overturn the earlier policy, and the two Republicans Board Members dissenting.

This significant change of NLRB policy is a victory for labor unions who will be able to use workplace email as a powerful new organizing tool. Business groups argued that this change would violate employer property rights, encumber email servers, threaten worker productivity and infringe the First Amendment right not to communicate unwanted messages of others.

Some commentators are predicting that this case will lead to further similar rulings expanding employee rights to use employer provided local area networks, internet, intranet, voicemail, video conferencing, cellular telephones and other forms of electronic communication to promote union activity.

If you have questions about this update, please contact the author of this article or an attorney at Clifton Budd & DeMaria, LLP.

About the Author
Robert A. Wiesen
Mr. Wiesen is an “AV” rated lawyer – the highest rating by Martindale-Hubbell for legal ability...
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