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NLRB Gives Employees Right to Use Employers’ Email for Union Organizing and Anti-Employer Communications

on Friday, 12 December 2014 in Labor & Employment Law Update: Sarah M. Huyck, Editor

In another effort to support unions, the National Labor Relations Board issued a significant and long-awaited decision yesterday that gives most employees the right to use their employers’ email systems to encourage employees to form and support a labor union.

In Purple Communications, Inc., 361 NLRB 126 (December 11, 2014), the Board reversed its 2007 Register Guard decision and held that employers who have chosen to give employees access to their email systems must allow those employees to use the email on nonworking time for statutorily protected communications. This would include, at a minimum, communications amongst employees about such things as union organizing, criticisms about the employer’s pay, benefits and working conditions, complaints about managers, and discussions about strikes or slowdowns.

The Board noted that its decision is limited to employees who have already been granted access to their employer’s email system in the course of their work and it does not require employers to provide such access if it has not already been granted. Second, an employer may justify a total ban on non-work use of email by demonstrating that “special circumstances” make the ban necessary to maintain production or discipline. Absent justification for a total ban, the employer may apply uniform and consistently enforced controls over its email system to the extent such controls are necessary to maintain production and discipline. The Board cautioned, however, that it will be extremely difficult for an employer to establish that special circumstances exist or that controls are necessary to maintain production and discipline.

The holding from this case applies to all private sector employers immediately. Employers are strongly encouraged to review their email usage policies to determine whether those policies expressly or impliedly prohibit employees from engaging in statutorily protected email communications during nonworking time. If they do, they should be revised as soon as possible to comply with this new ruling.


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