Bell Nunnally Partner Jay M. Wallace recently authored the article “Can Workers Use Their Employer’s Email Address for Collective Action?” for The Texas Lawbook. In the article, Wallace explores the National Labor Relations Board’s (NLRB) decision in Purple Communications, Inc. (21-CA-095151), a key case examining employer ability to control employee use of corporate email systems.
In the article, Wallace observes that company email accounts have traditionally been viewed by employers as their property. In Purple Communications, an administrative law judge followed current case law in finding that an employer was not required to permit use of its email system for union activities.
Following the decision in Purple Communications, the NLRB announced its intent to overturn the principal case informing the decision, The Guard Publishing Company d/b/a Register-Guard, 375 NLRB No. 27 (2011), and to decide whether employers are required to allow employees use of company email for collective action and union activities protected by Section 7 of the National Labor Relations Act. Wallace notes that the ruling in a Seventh Circuit Court of Appeals case, Fleming Companies v. NLRB, 349 F. 3d 968 (2003), represented a split of authority from Register-Guard and that the NLRB has invited briefing on this issue from interested parties.
In light of the decisions in Register-Guard and Fleming Companies, the NLRB has advised that while an employer may prohibit employee use of email for union-related communications, it “must do so in a neutral non-discriminatory manner.” The NLRB is currently considering whether to overturn Register-Guard by finding that companies are required to provide email access to employees seeking to collectively bargain or communicate regarding matters protected by Section 7. The NLRB’s view, Wallace notes, is that “the employer cannot pick and choose those non-work related emails that it allows and doesn’t allow.”
Wallace concludes the article by offering tips for employers to address union organizing activities while ensuring compliance with NLRB rules. The first step in addressing union activities is to identify issues that could be used to create momentum for an organizing effort, such as substandard working conditions, unsafe or poorly maintained equipment and wages that are inconsistent with industry standards. Companies must also create and consistently enforce an electronic communications policy. Finally, companies should apply the email policy strictly, as inconsistent enforcement of a policy will invite a challenge to its validity.
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