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Whose Email System Is It Anyway? NLRB Reverses Course on Register Guard Decision

On December 10, 2014, the National Labor Relations Board (NLRB) ruled, in Purple Communications, Inc., that employees who have been given authorized access to the employer’s email system may use the email system during non-working time for non-business communications. This was deemed a right protected by Section 7 of the National Labor Relations Act.  Employee email communications could discuss union issues, union organizing and other protected concerted activities.

The NLRB expressly overruled Register Guard, calling it "clearly incorrect." The NLRB’s rationale is that Register Guard failed to adequately consider the changing patterns of industrial life, putting too much weight on employers’ property rights and failing to protect workers’ rights to communicate and to organize.

In Purple Communications, the Communications Workers of America (“CWA”) filed an unfair labor practice charge after failing in its attempt to organize employees of Purple Communications Inc., a provider of sign language interpretation services. The CWA challenged Purple Communications’ electronic communication policy which prohibited employees from using the company’s email system for non-business purposes and on behalf of organizations not associated with the company. The NLRB agreed with the CWA that employers which grant employees access to a work email system should have to allow the employees to use the email system to discuss workplace issues, including those related to unionization: “[c]onsistent with the purposes and policies of the [NLRA] and our obligation to accommodate the competing rights of employers and employees, we decide today that employee use of email for statutorily protected communications on nonworking time must presumptively be permitted by employers who have chosen to give employees access to their email systems." 

This outcome is explained by the NLRB’s perception that email is a vital method of employee communication in the modern workplace.

“In short, in many workplaces, email is a large and ever-increasing means of employee communication for a wide range of purposes, including core production goals, no-production but work-related purposes, and often nonwork purposes.  In offices that rely exclusively or heavily on telework, it seems likely that email is the predominant means of employee-to-employee communication.”

The NLRB expressly stated the Purple Communications rule only applies to employees who have been granted access to the employer’s email system in the course of their work. Purple Communications does not require employers to provide such access. Additionally, non-employees are not granted access to an employer’s email system by Purple Communications. The NLRB also acknowledged in rare cases that an employer might justify a complete ban on non-work use of the email system if “special circumstances” were present that would justify “specific restrictions.”

Purple Communications may be appealed by the employer. The scope of employees’ rights to workplace email access and other electronic means of communication will continue to be developed by the NLRB. Employers are encouraged to review email and electronic communications policies to ensure that they comply with the NLRB’s new standard.

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Thomas Scrivner, Michael Best Law Firm, Labor and Employment Attorney
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Tom’s practice includes all aspects of labor law and employment litigation. He represents clients in a broad range of industries including construction, health care, printing, education, manufacturing service providers, and nonprofits. Tom is a frequent speaker before industry gatherings on topics such as wrongful discharge, employment litigation, work force reduction, drug and alcohol testing, disability and family medical leave laws, and sexual harassment.

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Farrah Rifelj, Michael Best Law Firm, Labor and Employment Attorney
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Farrah serves Michael Best in two capacities: as Deputy General Counsel and as a partner in the Labor and Employment Relations Practice Group. Her practice focuses on employment counseling and employment litigation, with a particular emphasis on discrimination, noncompetition, and Federal Contract Compliance Programs (OFCCP).

Farrah provides management with astute advice on employment topics such as:

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Brian Paul, Michael Best Law Firm, Labor and Employment Attorney
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Brian brings strategic business vision to his work representing companies engaged in employment-related disputes, both in state and federal courts and before administrative agencies. The focus of Brian’s practice is to deliver positive outcomes in litigation matters, including:

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  • Wage and hour collective actions

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  • Wrongful termination

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