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NLRB decides employer email systems permitted for union organizing

The National Labor Relations Board held recently that employers must allow use of company emails for union organizing purposes during non-work periods, a decision that many employment and labor advisers say will be a nuisance for workplace communication policies.

The Board’s decision in Purple Communications, a 3-2 split among NLRB members, included a controversial change to traditional labor law and office communication guidelines under Section 7 of the National Labor Relations Act. Because email has become a “common form of workplace communications” in recent years, the Board’s decision noted 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.”

According to John B. Langel, chair of Ballard Spahr’s litigation department, where he has led the firm's labor and employment group for more than 30 years, the NLRB move is not a shocker.

“No one’s surprised,” says Langel. “We’re seeing this as a major theme that the NLRB wants to do whatever it can to make life easier for unions to organize.” But, what is surprising is the use of private company property to help ease communications.

“Never has the NLRB allowed the use of private property,” Langel adds. “When you think of it just in terms of the workplace that has bulletin boards, a lot of things are posted on bulletin boards, [but] union messages were not free to be posted on bulletin boards – if you didn’t allow personal information.”

Meanwhile, Michael Lotito, shareholder with Littler Mendelson and co-chair of the firm’s Workplace Policy Institute, explains that this case “advances the rights of labor and employees at the expense of the employer's private property rights.”

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