Reversing a longstanding ruling, the NLRB yesterday held in Purple Communications, Inc. v. Communications Workers of America (.pdf) that employees could, under certain conditions, use employer email systems for their Section 7 communications. This decision, which will likely have significant workplace ramifications, is based upon erroneous reasoning and raises some very important questions.
As a key part of its justification for this ruling, the Board noted that “the increased use of email has been paralleled by dramatic increases in transmission speed and server capacity, along with similarly dramatic decreases in email’s costs.”
The heart of the argument is that since the cost of email is so low, its use as part of Section 7 activity should be permitted.
However, while the cost of any one email is de minimis, in the aggregate emails are not as inexpensive as the Board presumes. From extrinsic costs such as productivity losses related to email inbox overload to intrinsic costs related to storage, management, retrieval and production of millions of emails, email is not at all cost-free or even inexpensive to employers. At the same time, numerous low-cost non-employer-provided avenues of communication exist for employees to use to engage in concerted activity, including social media. (How can one argue both that emails are not so low cost to employers and suggest that employees have a plethora of low-cost avenues for their Section 7 communications? Because unlike the social media giants, most employers do not monetize the data in their email servers.)
Dissenting members argued that the decision creates uncertainty as to which technologies are, as a matter of law, permitted to be used for Section 7 purposes and that the ruling usurps longstanding employer property rights. Put differently, when is an employer to conclude that a technology it deploys (say, a video conferencing system) is sufficiently inexpensive per use to require that the employer’s access and use rules are abrogated by Section 7? Furthermore, if the employer “opens” a techology too early, will it run afoul of Section 8(a)(2), which makes it unlawful for an employer “to … contribute financial or other support to [any labor organization]”?
Editorializing aside, employers should carefully review all of current technology use policies for compliance with this ruling. Toward that end, it may be helpful for employers to find an objective measure of cost-per-use for its communications systems. Last, as always, a mechanism for continually reviewing and updating all technology policies should be in place.
{workplace_tech_law} 