NLRB Rules that Employees May Use Company E-mail for Union Organization

12.15.14

By Keith F. Overholt

A new name has entered the lexicon of American labor law:  Purple Communications.  It will turn employers several shades of red when they learn that, on December 10, 2014, the National Labor Relations Board (NLRB) held that if an employer makes its e-mail available to its employees for use in connection with their job, the employer must permit employees to use the e-mails system “for statutorily protected communications.” In a union context, that means if a union is trying to organize an employer, employees of that employer may use the company e-mail system to communicate virtually anything they like, as most communications are protected. Presumably, protected communications could, for example, include such statements as, “This place sucks,” ”I hate working here,” or ”These bozos do not know what they are doing,” and be sent through the company e-mail system. 

The NLRB did suggest some exceptions, such as where an employer completely bans use of e-mail for non-business purposes; however, the agency will require the employer to “justify” such a ban by demonstrating “the special circumstances that make the ban necessary to maintain production or discipline.” Furthermore, an employer would have to show that such a ban is enforced on a uniform and nondiscriminatory basis. Clearly, the NLRB does not expect many employers to meet that standard.