Expanded Right to Use E-mail for Union Organizing

The National Labor Relations Board recently issued a decision significantly expanding the right of employees to use their employers' e-mail systems for union organizing and other activities protected by Section 7 of the National Labor Relations Act. The decision is available at http://mynlrb.nlrb.gov/link/document.aspx/09031d45819e22c9.

In Purple Communications the board explained that “the use of email as a common form of workplace communication has expanded dramatically in  ecent years.”  Therefore the board ruled 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.” While the case addressed communications supporting the union during an organizing drive, given the board's expansion of protected activity, this also includes communications critical of the employer's employment-related policies, practices and management decisions.

Therefore, employees who are given access to their employer’s e-mail system for business purposes now will be able to use that system on non-working time to engage in a wide range of protected communications, including union support and comments critical of the employer's employment-related policies and management decisions.  While the board did not directly address other types of electronic equipment and communications, such as instant messaging or texting from employer-owned smartphones and other devices, the board noted that a similar analysis would potentially apply.

However, there are limitations to the decision. First, since the decision was issued by the NLRB, under the statute protecting private-sector employees, it only applies to private-sector employees. Second, the board only addressed employee use of work e-mail, and did not extend the protection to cover use by non-employees. Third, the protected use was limited to non-work time, and absent discrimination against the union it does not give the employees right to use the work e-mail during work time. Fourth, the employer may in certain limited circumstances prohibit or limit the use of work e-mail on non-work time. Finally, this ruling will likely be appealed and could be overturned by the courts.

Nonetheless, this is a major step forward for the rights of faculty members in private institutions. E-mail is one of the primary ways in which faculty speak to each other in the modern world. The ability to use email to communicate is essential to faculty, particularly contingent faculty, who are often dispersed and may not be able to speak directly to each other regularly. This decision recognizes this reality and provides private-sector faculty members’ use of work email to communicate with each other about union matters will be protected.

Publication Date: 
Friday, December 19, 2014