Employees Can Use Work Email for Union Activities: NLRB

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By Mark Wilson, Esq. on December 15, 2014 8:58 AM

Can employees be disciplined for using a work email account to discuss or conduct union activities? A 2007 decision of the National Labor Relations Board called Register Guard said that a facially neutral email policy prohibiting all "nonjob-related solicitations" didn't violate the National Labor Relations Act.

Last week, the NLRB reversed course, declaring in Purple Communications that "the Register Guard analysis was clearly incorrect."

Let Them Have Email

The NLRB's ruling comes with some caveats. First, it doesn't mandate that employers provide employees with access to an email system. Second, it allows employers to enforce a total ban on all non-work email activity, including protected activity, by demonstrating "that special circumstances make the ban necessary to maintain production or discipline."

Other than that, though, Purple Communications is a complete 180 from Register Guard. Why the change? Technology, for one thing. Purple Communications recognizes that the importance of email has increased "dramatically" since 2007.

As a former IT Guy, however, I find that hard to believe. We used email just as much in 2007 as we do today; email wasn't markedly more novel then than it is now. It seems more likely that this case presented an opportunity to reverse what was a pretty silly decision. One other consideration weighed in favor of overruling Register Guard: The overwrought focus on employers' property rights and employer equipment, to the detriment of employees' Section 7 rights. (And, hilariously, Register Guard concerns itself with things like "preserving server space" and "protecting against computer viruses" as reasons to disallow Section 7 activities over email, as though union emails are so prolific that the employer's server is running out of space.)

What Do You Do Now?

As with Register Guard, this case engendered a dissent that said there are so many alternative forms of online communication that employers don't have to make their own system available for Section 7 use. The dissent also claimed that the majority's opinion contravenes years' worth of decisions holding that employers can prohibit union solicitation during work hours as long as all solicitation is prohibited.

Regardless, the majority's decision is the new law, and for GCs that basically means a total reversal. Either you take away all employee email accounts (not likely) or make an explicit exception in employee handbooks that union activity is permitted. Certainly Purple Communications will appeal this decision however it can, but email is such a pervasive method of business communications that the ruling is unlikely to be overturned. Everyone uses email (except the Supreme Court justices, that is).

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