Last week, Purple Communications (“Purple”), a video provider for deaf and hard-of-hearing individuals, appealed a 2014 NLRB ruling that allows employees to send union messages over work email to the U.S. Court of Appeals for the Ninth Circuit. The NLRB’s 2014 ruling held that employees who already have access to their employer’s email system are permitted to use the email system for protected union-related activities because email is the premier platform for “worker speech” in the modern workplace. That decision was limited to only workers who have already been granted access to the employer’s email system. The NLRB also ruled that employers may institute a complete ban on non-work email use only if the employer can justify the ban by identifying “special circumstances” that make the prohibition necessary. This ruling overturned a 2007 NLRB judgment that held employees had no right to use employer email for union activity.
In its appeal, Purple argues that the NLRB’s 2014 ruling unfairly restricts employers’ rights to control their own computer systems and that allowing these emails, similar to physical union literature, could clutter workers’ inboxes which would interfere with productivity. Purple also argues the NLRB’s ruling violates the company’s First Amendment rights by letting employees distribute messages through their employer-provided email that Purple (and other employers) do not necessarily endorse.
COUNSEL TO MANAGEMENT:
Given the preference of many employers and society as a whole to use email as the primary communication tool, the outcome of this appeal looms large for employers. The NLRB’s 2014 ruling flies in the face of conventional thought that employers’ work email is to be used for precisely that – work. Regardless of how the appeal turns out, employers should carefully tailor their employee email policy to justify a prohibition on non-work use of email to avoid infringing on any potential protected union-related activities. We will update you as the case progresses. In the meantime, contact The Saqui Law Group with any questions or concerns you may have with your Company’s policies.