On December 11, 2014, the National Labor Relations Board (the “Board”) made an unprecedented move holding that employees are entitled to access their employer’s email systems to discuss organizing a union, wages, benefits and other protected concerted activities. In Purple Communications, 361 NLRB No. 126, the Board found that employees may send emails to other employees on non-working time if employers provide their employees with access to the email system. In doing so, the Board has stripped away an employer’s property right in its own computer systems. The Board stated its decision was “carefully limited” in that: (1) it applies only to employees that already have access to the email system in the course of their work; and (2) does not require an employer to actually provide access to employees who do not.
The Board also provided broad, undefined and ambiguous guidance as to when an employer may ban or limit the use of its email system. Without examples, the Board stated an employer can ban the non-work use of its email system by demonstrating “special circumstances” that would make the ban “necessary to maintain production or discipline.” The employer may also “maintain uniform and consistent controls” over its email system to the extent such controls are “necessary to maintain production and discipline.” It is difficult to conceive of circumstances, and the Board provided none, in which an employer could lawfully implement a ban to promote production or discipline given that employees can only make non-work use of the system during non-work time.
The Board purposely refused to address the issue of email access by “non-employees,” claiming it was not in the case before them. It is safe to assume that the “non-employees” the Board refers to are union representatives and its organizers. Certainly, the issue of “non-employee” use of the employer’s email system is on the horizon. Given the Board’s decision here, union organizers will certainly push to gain access employer’s private email systems. In not addressing the issue, the Board is simply saving that salvo for another day.
Beyond its holding, this decision by the Board opens a Pandora’s Box of issues for employers. Can an employer lawfully view emails sent by employees on its own system regarding union activities, or is this unlawful surveillance? Does the employer have to safeguard and store attachments sent on its email systems by employees that contain union materials? What if the employer’s spam software blocks union emails and attachments, is this now an unfair labor practice?
Anyone, including employees, can sign up for free email accounts on the internet and share their email addresses with each other and with any union. The union can provide employees with an email address that will allow such individuals to communicate with other employees. Every public library has free access to computers and the internet. There is simply no need for the Board, a government agency, to hijack an employer’s email system for the use of the union, other than to stay relevant and support union organizing.
If you have any questions or concerns on how this Board decision may affect your company, please do not hesitate to call Nick Nykulak or Alan Ross.