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NLRB Rules E-mail is the New Watercooler

Peter J. Richter

Diana M. Eisenberg

July 25, 2016

As technology becomes increasingly present in modern workplaces, many employers have attempted to regulate employees’ access to or use of its e-mail systems.  In a recent decision, Purple Communications, Inc. v. Communications Workers of America (“Purple I“), the National Labor Relations Board (“NLRB”) ruled that if an employer permits its employees to access the Company e-mail system, it cannot prohibit those employees from using the e-mail system during non-working hours to discuss unionization or working conditions.  The NLRB noted that while an employer is not required to give employees access to its e-mail systems, once the employer does, it can only justify employee access restrictions for off-the-clock communications about working conditions by showing that special conditions require the restriction.

This decision overturned the NLRB’s prior decision in Register Guard, in which the NLRB classified employer e-mail systems as “equipment,” and applied a line of decisions that prohibits employees from infringing on an employer’s property interests.  The NLRB’s decision in Purple I rejected Register Guard‘s categorization of e-mail systems as “equipment” and instead found that its precedent related to workplace communication was more applicable.  The NLRB’s decision was driven by its determination that in the age of electronic communication, globalization, and tele-commuting, e-mail has become the new natural gathering place for employees to communicate with one another regarding working conditions.

The NLRB did limit its opinion in several ways.  As before, employers are still not required to grant employees access to their e-mail systems.  Furthermore, it applies only to e-mail systems and does not address other forms of electronic communication systems like instant messaging.  Employers may also be able to impose certain non-discriminatory limitations on employees’ use of its e-mail system, such as prohibiting large attachments.

The case is again before the NLRB for re-hearing (“Purple II“).  In Purple II, the AFL-CIO is requesting that the NLRB expand its holding to apply to all electronic communications, not just e-mail systems.  The AFL-CIO has also asked the NLRB to apply its holding in Purple I to time that employees are on the clock as long as the employer allows its employees (whether formally or informally by not enforcing restrictions) to use e-mail for personal or work-related purposes while working.  Purple Communications responded to the AFL-CIO’s requests by asserting the issues the AFL-CIO raised are outside of the scope of what the NLRB is meant to determine.  Given the new and potential developments in the application of the National Labor Relations Act to technology, employers should carefully review their electronic communications policies.


If you have any questions about how the information in this article may affect you or your business, please contact Peter Richter at prichter@stroudlaw.com or Diana Eisenberg at deisenberg@stroudlaw.com or (608) 257-2281 or your Stroud attorney.

DISCLAIMER: The information in this article is provided for general informational purposes only, is not necessarily updated to account for changes in the law, and should not be considered tax or legal advice.  This article is not intended to create, nor does the receipt of it constitute, an attorney-client relationship.  You should consult with your own legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.