Your e-mail, your privacy and your right to organize

Legal Corner

Volume 115, No. 2February, 2015

Harvey S. Mars, Esq.
Harvey Mars, Esq.

Harvey Mars, Esq.

For those of my readers in their 40s or older, try for a moment to imagine how your life was before the advent of e-mail. Hard to do, isn’t it? (For my younger readers, this must seem impossible!) Before e-mail, do you remember constantly being on the phone? Did you write and receive letters? How did you communicate with colleagues and loved ones? I for one cannot possibly fathom how I conducted my life prior to using e-mail.

It’s also obvious to me that not only has the method of communication changed radically but the amount of time we spend communicating has also expanded.

E-mail has not actually replaced oral or other written forms of communication. It has merely supplemented them. However, as it stands now, e-mail is the primary basis by which I communicate professionally and personally. It is inextricably intertwined with how I live. Perhaps this is true for most people. Even more remarkably, I cannot pinpoint an exact period of time when I started to rely on e-mail. It was a completely seamless transition. I would venture to guess that the use of e-mail and other modes of electronic communication have undisputedly become the predominant means of communication in our society today.

In 2007, the National Labor Relations Board was posed an intriguing question related to e-mail. The question was this: are employees allowed to use their work e-mail during non-working time to discuss the terms and conditions of their employment with other employees? The NLRB said no. In its decision in Register Guard, 351 NLRB No 70 (2007), the NLRB held that an employer may completely prohibit employees from using its e-mail system to engage in concerted activity for mutual aid and protection, even if they were otherwise allowed access to the system.

In this decision, the NLRB equated an employer’s e-mail system to other communication equipment the employer owned, such as bulletin boards, copy machines, public address systems and telephones. Under prior NLRB decisions, the board has held that an employer can completely ban non-business use of such equipment, even if the use was not on working time.

The Register Guard decision was widely criticized as being totally out of touch with reality on many fronts. The dissenting opinion in fact equated the anachronistic majority opinion with a viewpoint that could only be formulated by Rip Van Winkle!

I lamented the harmful impact of the Register Guard decision in my March 2008 Allegro column, which can be read online.

Well, after eight long years of slumber it finally looks like Mr. Van Winkle has awoken. On Dec. 11, 2014, the NLRB issued a decision in which it overturned Register Guard. The decision was Purple Communications, Inc. and Communications Workers of America, 361 NLRB No. 126. There, the NLRB held that employee use of e-mail for statutorily protected communications (those pertaining to terms and conditions of employment), on non-working time must presumptively be permitted by employers who have chosen to give employees access to their e-mail systems. The newly constituted NLRB held that the Register Guard decision improperly focused on employers’ property rights, rather than on their limited ability to control and limit employees’ communication at the workplace on non-working time. Viewing e-mail as being the equivalent to property such as a bulletin boards or public address systems simply did not take into account the fundamental ways e-mail systems varied from these tangible items.

First and foremost, e-mail systems are not limited resources. Multiple communications on a myriad of topics can be transmitted simultaneously, unlike a bulletin board or public address system. An e-mail can be sent to an unlimited number of recipients at the same time. Further, employees can determine whether or not to read or respond to an e-mail based upon the topic heading contained on it.

Thus, the NLRB concluded that an employer’s e-mail system was less like a photocopy machine and more like a “new natural gathering place and forum in which coworkers who share common interests will seek to persuade fellow workers in matters affecting their union organizational life and other matters related to their status as employees.”

In re-focusing on e-mail as a modality of communication rather than piece of property owned by an employer, the NLRB finally recognized the ubiquity of e-mail and how prior limitations on its use hampered employees’ associational rights.

While this decision should be celebrated, it must be noted that it has absolutely no impact upon any other means of employer-owned electronic communication. For instance, workers don’t necessarily have the right to organize by leaving comments on an employer’s Facebook page. Further, this decision does not protect workers at a workplace where an employer does not permit employee use of e-mail for any reason, work-related or not. Additionally, employers may continue to monitor employee e-mail communications as they had previously, which of course could constrain employee e-mail organizational campaigns, which almost always require stealth and candor.

Nonetheless, this decision is a remarkable one that reflects a new era in NLRB adjudication, and hopefully will countervail less progressive decisions rendered by the Supreme Court this term. The decision will have retroactive effect.

In a similar progressive development, the NLRB has also announced more streamlined representation election rules that should make union organization campaigns more likely to succeed. Litigation of bargaining unit issues will now be reserved until after the representational election. Also, bargaining unit employee e-mail addresses are now required to be provided to the union prior to the representation election. This too is a development that should be applauded.

All in all, this is a good way for organized labor to begin the New Year.