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Purple Communications, Inc. and Communications Workers of America, AFL-CIO

At the heart of the National Labor Relations Act ("NLRA") is an employee's Section 7 right to participate in concerted activity and communicate with fellow employees regarding conditions of employment. Prior to the ruling of the National Labor Relations Board ("NLRB" or "the Board") in Purple Communications, Inc. and Communications Workers of America, AFL-CIO ("Purple Communications"), email communication between employees exercising Section 7 rights could be lawfully banned by an employer so long as it was not done so in a discriminating way. In Purple Communications, the Board modified its stance on email communication to adapt to the changing nature of the workplace.1 The issue in Purple Communications was whether Section 7 of the NLRA extended to email communication between employees. In Purple Communications, the Board held that employees, that have access to the company's email, are allowed to use it for concerted activity during non-working time.

Prior to the decision in Purple Communications, the NLRB broadly restricted employees' activity under the ruling in Guard Publ. Co. v. NLRB ("Register Guard".)2 Register Guard weighed employees' Section 7 rights against the employer's property right and held that an employer could restrict employee usage of its email services without justification, so long as it did not discriminate against union activity. In other words, the employer's property right over its email system weighs more heavily than an employee's Section 7 rights. The Board's decision in Register Guard was motivated by an archaic view of email technology.

The Board updated its antiquated view in Purple Communications. The decision outlined the importance email has in a changing work environment and it shows that email usage has increased over time and has become the "natural gathering place3" of the modern work site. Conversely, Register Guard incorrectly compared email to modes of communication like bulletin boards and telephones. In Purple Communications, the Board demonstrated the importance of email to the modern workplace and found that there is no reasonable protection of concerted activity when the primary mode of communication is broadly restricted.

With there previously being such broad restrictions placed on Section 7 rights by Register Guard, Purple Communications contains a new analytical framework to govern the use of an employer's email in concerted activity. Purple Communications only applies, however, to email communications between employees that have been given access to the company's email and the employer can still monitor those communications in a non-discriminatory manner. In addition, Purple Communications changes the weighing mechanism from the owner's property rights to management's interests. That is to say that Section 7 rights should instead be compared to an employer's managerial interest in production and discipline. The change to "managerial interest" means that the employer cannot restrict email usage without showing that email communication in some way hurts the company in a critical business aspect, such as productivity or production. Keep in mind, however, that the change does not mean that every employee is entitled to be granted access to an email account on the company's network. In other words, the decision protects the content an employee might send, but it does not necessarily mean each employee gets an email account. The aim of the new framework is to enhance Section 7 rights at the heart of the NLRA.

What You Can Do If You Have A Company Email Account

  • Use the email to engage in protected activity (i.e., union organizing, discussions of wages, discussions of other conditions of employment).


What You Cannot Do (Even If You Have A Company Email Account)

  • Allow your usage of the email account to hamper your productivity at work, or the productivity of others.
  • Allow your usage of the email account to hold the company back in a key business interest, such as production.


The legal team at SFMS has significant experience litigating labor and employment matters. If you have any questions regarding this subject or this posting, please contact James E. Miller (jmiller@sfmslaw.com). We can also be reached toll-free at (866) 540-5505.

Shepherd Finkelman Miller & Shah, LLP is a law firm with offices in California, Connecticut, Florida, New Jersey, New York, Pennsylvania and Wisconsin. SFMS also maintains an affiliate office in London, England and is an active member of Integrated Advisory Group (www.iaginternational.org), which provides us with the ability to provide our clients with access to excellent legal and accounting resources throughout the globe. For more information about our firm, please visit us at www.sfmslaw.com.

Sources:

1. www.nlrb.gov/case/21-CA-095151

2. www.jonesday.com/files/pdfupload/Practice%20PDFs/Guard_Publishing_Co_v_%20NLRB_571_F_%203d%2053_Court_of_Appeals_Dist.pdf

3. www.nlrb.gov/case/21-CA-095151=361

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