For the last seven years, employers have had the right to control the use of their email system by banning employee communication regarding union-related activities, so long as the ban applied to all non-work-related communications and did not discriminate against union activity.
In a recent decision, Purple Communications, Inc. v. Communications Workers of America, 361 NLRB 126 (2014), the NLRB reversed course and concluded that if employers grant employees access to their email system for work purposes, “employee use of email for statutorily protected communications on non-working time must presumptively be permitted.”
The Purple Communications decision expressly overrules Register Guard, 351 NLRB 1110 (2007), in which the Board ruled that employees have no statutory right to use work email for communicating with other employees regarding union-related activities. The NLRB explained that Register Guard was “clearly incorrect” because it struck the wrong balance between the rights of employees and employers and focused “too much on employers’ property rights and too little on the importance of email as a means of workplace communication.” Also, by likening email to company-related equipment such as bulletin boards and copy machines, Register Guard “inexplicably failed to perceive the importance of email as a means by which employees engage in protected communications.”
While the Purple Communications decision still permits employers to ban all non-work-related use of email, including union activity on non-working time, if the ban is necessary to maintain “production or discipline,” the employer must demonstrate that special circumstances make the ban necessary, and only “rare” circumstances would justify a ban.
While the Massachusetts Department of Labor Relations (DLR) has not yet expressly followed Register Guard or the recent Purple Communications, the DLR generally looks to NLRB case law when deciding issues of first impression. Where a strict ban on non-work-related email use may now be considered an unfair labor practice, employers should review their email policies. For more information, contact us.
