Friday, December 12, 2014

NLRB: Employees have presumptive right to employer's email for Section 7 purposes

Once upon a time (i.e. 2007), the NLRB held that employees had no statutory right to use an employer's email system for "Section 7" purposes. Section 7 of the NLRA protects things like concerted activity for mutual aid and protection, collective bargaining, union formation, etc. Employers could bar employees from using their email systems for these activities so long as they did so in a way that did not discriminate against NLRA-protected activity (e.g. a ban on all personal communications, general nonsolicitation policies, etc.). The case was Register Guard.

Surprise! Yesterday, after deep and thoughtful analysis (i.e. a different political party appointed the majority), the NLRB overruled Register Guard. That case is Purple Communications. The NLRB describes its decision in a nutshell:
[W]e decide today 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.
And now, the law is settled . . . until at least 2016. As Dan Schwartz blogged: "It's not right or wrong. This is just how the NLRB works."