Employees who have access to an employer’s email system as part of their job may now, during non-working time, use the email system to communicate about wages, hours, working conditions, and union organizing issues notwithstanding corporate policies restricting email to business purposes only. Most businesses view this as an unprecedented taking of their private property. Employees now have, with the push of a button, immediate access to reach everyone they want to send a message to, including co-workers they seek to recruit to join a union organizing campaign.
This new rule does not require companies to provide access to their email systems to all employees; rather, it covers employers that provide email accounts hosted on the employer’s email server. Companies can still lawfully monitor employee email use if done so in the ordinary scope of business. Employers can still ban all non-work-related use of email – including Section 7 email use on non-working time – if the company can demonstrate that special circumstances make the ban necessary to maintain “production or discipline.” Unfortunately, the NLRB concluded that such special circumstances would be rare.
All companies should review their email policies for compliance with the Purple Communication decision and should consider eliminating the use of email by employees whose jobs do not require it. A preliminary measure of compliance could be to modify a rule restricting email use to business purposes only to articulating that, with the exception of communications regarding wages, hours, working conditions, and unions, email systems may be used only for business purposes.
Matt Austin is a lawyer based in the Columbus, Ohio office of Roetzel & Andress, LPA who limits his practice to representing employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 723-2010 or email him at firstname.lastname@example.org.